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
TO CASE
Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE
Theodore
Rowe challenges his 1997 conviction and the resulting,
“three strikes” sentence of incarceration for
thirty-five years to life in prison. However, Mr. Rowe has
challenged this same conviction and sentence in earlier
cases. Because this petition is successive, it should be
DISMISSED.
I.PROCEDURAL
HISTORY
In the
course of conducting a preliminary screening of the petition,
the Court’s realized that Petitioner has previously
filed several federal habeas petitions challenging this same
conviction. The Court denied his previous case, case number
1:01-cv-5245-JKS, on the merits on April 14, 2004, and
entered judgment the following day. (Docs. 14 & 15 for
case no. 1:01-cv-5425-JKS). The Court’s records
indicate that, following Petitioner’s filing of a
notice of appeal of the order of denial, the United States
Court of Appeals for the Ninth Circuit, on July 23, 2007,
affirmed the district court’s denial of the petition.
(Doc. 26 for case number 1:01-cv-5425-JKS).
On
November 12, 2009, Petitioner filed a successive petition
challenging the same conviction in this Court in case number
1:09-cv-02051-JLT. The Court dismissed this petition as
successive on April 28, 2010. Then again, on September 10,
2012, Petitioner filed yet another successive petition in
case number 1:12-cv-1477-BAM. Once again, the Court dismissed
the petition as successive on October 16, 2012.
Petitioner
freely admits that this current petition is successive,
writing that “… [P]etitioner comes now to
support the petition attached, and to sincerely apologize to
the courts for my continued attempts at habeas corpus. I was
not guilty in 1997, nor am I today. So I refuse to stop
trying to obtain my freedom.” (Doc. 1, p. 7).
II.DISCUSSION
A.
Preliminary Review of Petition.
Rule 4
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).
B.
Successive Petitions. [§ 2254]
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 fact-finder 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 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 ...