FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner without counsel seeking a writ of habeas corpus. See 28 U.S.C. § 2254. Currently pending before the court is respondent's motion to dismiss this action on the grounds that the petition is second or successive. See 28 U.S.C. § 2244(b). Petitioner opposes the motion. As explained below, the petition is not second or successive, and respondent's motion to dismiss must therefore be denied.
A petition is second or successive if it makes "claims contesting the same custody imposed by the same judgment of a state court" that the petitioner previously challenged, and on which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive petition in a district court, a petitioner must obtain from the appellate court "an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Without an order from the appellate court, the district court is without jurisdiction to consider a second or successive petition. See Burton, 549 U.S. 147.
"Generally, a new petition is 'second or successive' if it raises claims that were or could have been adjudicated on their merits in an earlier petition." Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001). Respondent contends that the instant petition is successive because petitioner has filed a prior petition with this Court, which was denied in 2008 and is currently pending on appeal before the Ninth Circuit. Andrew A. Cejas v. Lou Blanas, et al., No. CIV S-05-2274 GEB GGH P (hereinafter "Cejas v. Blanas") (filed November 9, 2005). In support of that contention, respondent cites Vasquez v. Parrott, 318 F.3d 387, 390 (2d Cir. 2003).
Vasquez instructs, however, that "[n]ot all petitions filed under the habeas statute count under AEDPA's successive petition rule." Id. Of relevance here, a subsequent petition attacking a different judgment from an earlier petition is not second or successive. Id. "Rather, to be considered 'successive,' a prisoner's second petition must, in a broad sense, represent a second attack by federal habeas on the same conviction." Id.
Petitioner initially sought habeas relief with this Court prior to his conviction, arguing that state authorities had not brought him to trial in a timely manner, violating his rights to due process and a speedy trial. Cejas v. Blanas, Dckt. Nos. 22 (findings and recommendations) & 28 (order adopting findings and recommendations). The instant petition attacks his actual conviction, alleging error at trial. Andrew A. Cejas v. James A. Yates, No. CIV S-08-2494 MCE EFB,Dckt. No. 1. As the two petitions do not attack the same conviction (the initial petition challenged only petitioner's detention, not his actual conviction), the instant petition is not second or successive. Indeed, Vasquez itself, in addressing a similar factual scenario, states:
Thus, if a prisoner filed a habeas petition seeking release based on the allegation that, having been arrested for a crime, he was held for a lengthy period without trial in violation of the Constitution, AEDPA's successive petition rule would not restrict his ability to file a habeas petition challenging his eventual conviction and sentence for the underlying crime. While both petitions would concern the same arrest and the same criminal charges, only the second petition described would be an attack on the judgment of conviction. The claim of the first petition, in contrast, would simply be that the prisoner was being held "in custody in violation of the Constitution or laws or treaties of the United States" without being allowed to defend himself at trial and was therefore entitled to release pending trial. See 28 U.S.C. § 2241.
Accordingly, it is hereby RECOMMENDED that:
1. Respondent's April 28, 2009 motion to dismiss be DENIED;
2. Respondent be directed to file and serve an answer to the application within 60 days from the date of this order. See Rule 4, Fed. R. Governing § 2254 Cases. An answer shall be accompanied by any and all transcripts or other documents relevant to the determination of the issues presented in the application. See Rule 5, Fed. R. Governing § 2254 Cases;
3. Petitioner be directed that his reply, if any, be filed and served within 30 days of service of an answer; and,
4. Petitioner's May 7, 2009 request for a certificate of appealability be DENIED as unnecessary.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal ...