United States District Court, E.D. California
GREGORY W. STEWART, Petitioner,
J. MACOMBER, Respondent.
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS,
DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO
ISSUE A CERTIFICATE OF APPEALABILITY
Gregory W. Stewart is a state prisoner proceeding pro
se with a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. In the instant petition, Petitioner
challenges his 1994 conviction in the Merced County Superior
Court for sale of a controlled substance. As Petitioner has
previously sought federal habeas relief with respect to the
challenged conviction, the Court finds that dismissal of the
petition is warranted pursuant to 28 U.S.C. § 2244(b)
because it is an unauthorized successive
of the Rules Governing Section 2254 Cases requires
preliminary review of a habeas petition and allows a district
court to dismiss a petition before the respondent is ordered
to file a response, if it “plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” A 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 factfinder would have found the applicant guilty
of the underlying offense. 28 U.S.C. §
2244(b)(2)(A)-(B). However, it is not the district court that
decides whether a second or successive petition meets these
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, a
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, 656-57 (1996).
This Court must dismiss any second or successive petition
unless the Court of Appeals has given a petitioner leave to
file the petition because a district court lacks
subject-matter jurisdiction over a second or successive
petition. Burton v. Stewart, 549 U.S. 147, 157
instant petition, Petitioner challenges his 1994 conviction
in the Merced County Superior Court for sale of a controlled
substance. (ECF No. 1). Petitioner previously sought federal
habeas relief in this Court with respect to the same
conviction at least ten times. See Stewart v.
McGrath, No. 1:00-cv-05452-SMS (dismissed as untimely);
Stewart v. Sullivan, No. 1:06-cv-01400-WMW
(dismissed as successive); Stewart v. Adams, No.
1:09-cv-00685-GSA (dismissed as successive); Stewart v.
Adams, No. 1:09-cv-02212-JLT (dismissed as successive);
Stewart v. Macomber, No. 1:10-cv-00954-AWI-DLB
(dismissed as successive); Stewart v. Macomber, No.
1:11-00814-DLB (dismissed as successive); Stewart v.
Macomber, No. 1:12-cv-00594-JLT (dismissed as
successive); Stewart v. Macomber, No.
1:14-cv-00266-AWI-MJS (dismissed as successive); Stewart
v. Macomber, No. 1:15-cv-00051-SKO (dismissed as
successive); Stewart v. Macomber, No. 1:15-01592-SMS
(dismissed as successive).
Court finds that the instant petition is “second or
successive” under 28 U.S.C. § 2244(b). See
McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009)
(holding “dismissal of a first habeas petition for
untimeliness presents a ‘permanent and incurable’
bar to federal review of the underlying claims, ” and
thus renders subsequent petitions “second or
successive”). Petitioner makes no showing that he has
obtained prior leave from the Ninth Circuit to file his
successive petition. Therefore, this Court has no
jurisdiction to consider Petitioner’s renewed
application for relief under 28 U.S.C. § 2254 and must
dismiss the petition. See Burton, 549 U.S. at 157.
found that petitioner is not entitled to habeas relief, the
Court now turns to whether a certificate of appealability
should issue. A state prisoner seeking a writ of habeas
corpus has no absolute entitlement to appeal a district
court’s denial of his petition, and an appeal is only
allowed in certain circumstances. Miller-El v.
Cockrell, 537 U.S. 322, 335-36 (2003). The controlling
statute in determining whether to issue a certificate of
appealability is 28 U.S.C. § 2253, which provides as
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the validity of such person’s detention pending
(c) (1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to
the court of appeals from-
(A) the final order in a habeas corpus proceeding in which
the detention complained of arises out of process issued by a
State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of