United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS AS SECOND AND SUCCESSIVE ORDER
DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS
ORDER DIRECTING CLERK OF THE COURT TO ASSIGN DISTRICT JUDGE
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
Ward challenges his 2011 conviction for making criminal
threats, which resulted in the trial court sentencing him to
17 years in custody. (Doc. 1) The Court notes that Mr. Ward
has previously filed a prior federal habeas petition
challenging this very same conviction. (Ward v.
Duffy, case number 1:13-cv-01367-SKO) In the earlier
matter, he asserted that there was insufficient evidence to
support the conviction. On September 14, 2015, the Court
denied the petition on the merits. Petitioner did not appeal
and that judgment is now final.
this current petition is successive, the Court recommends it
Preliminary Review of Petition
of the Rules Governing Section 2254 Cases allows a district
court to dismiss a petition if it “plainly appears from
the face of the petition and any exhibits annexed to it that
the petitioner is not entitled to relief in the district
court . . . .” Rule 4 of the Rules Governing Section
2254 Cases. The Advisory Committee Notes to Rule 8 indicate
that the court may dismiss a petition for writ of habeas
corpus, either on its own motion under Rule 4, pursuant to
the respondent’s motion to dismiss, or after an answer
to the petition has been filed. Herbst v. Cook, 260
F.3d 1039 (9th Cir.2001).
Successive Petitions [§ 2254]
federal court must dismiss a second or successive petition
that raises the same grounds as a prior petition. 28 U.S.C.
§ 2244(b)(1). The Court must also dismiss a second or
successive petition raising a new ground unless the
petitioner can show that 1) the claim rests on a new,
retroactive, constitutional right or 2) the factual basis of
the claim was not previously discoverable through due
diligence, and these new facts establish by clear and
convincing evidence that but for the constitutional error, no
reasonable fact-finder would have found the applicant guilty
of the underlying offense. 28 U.S.C. §
it is not the district court that decides whether a second or
successive petition meets these requirements that allow a
petitioner to file a second or successive petition, but
rather the Ninth Circuit. Section 2244 (b)(3)(A) provides:
"Before a second or successive application permitted by
this section is filed in the district court, the applicant
shall move in the appropriate court of appeals for an order
authorizing the district court to consider the
application." In other words, Petitioner must
obtain leave from the Ninth Circuit before he can file a
second or successive petition in district court. See
Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This
Court must dismiss any second or successive petition
unless the Court of Appeals has given Petitioner
leave to file the petition because a district court lacks
subject-matter jurisdiction over a second or successive
petition. Pratt v. United States, 129 F.3d 54, 57
(1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d
1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct.
794 (1997); Nunez v. United States, 96 F.3d 990, 991
(7th Cir. 1996).
the current petition was filed after April 24, 1996, the
provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 apply to Petitioner's current petition.
Lindh v. Murphy, 521 U.S. 320, 327 (1997).
Petitioner has made no showing that he has obtained prior
leave from the Ninth Circuit to file this successive petition
attacking his conviction. That being so, this Court has no
jurisdiction to consider Petitioner's renewed application
for relief from that conviction under § 2254 and must
dismiss the petition. See Greenawalt, 105 F.3d at
1277; Nunez, 96 F.3d at 991. If Petitioner desires
to proceed in bringing this petition for writ of habeas
corpus, he must first file for leave to do so with the Ninth
Circuit. See 28 U.S.C. § 2244 (b)(3).
foregoing reasons, the Clerk of the Court is DIRECTED to
assign a United States District judge to this case.
the Court RECOMMENDS that the Petition for Writ of Habeas
Corpus be DISMISSED ...