United States District Court, E.D. California
Darrell Wright, Petitioner, Pro Se.
FINDINGS AND RECOMMENDATION TO DISMISS SUCCESSIVE
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. §
2244(b) ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT
COURT JUDGE TO THE PRESENT MATTER
MICHAEL J. SENG, Magistrate Judge.
is a state prisoner proceeding pro se with a
petition for writ of habeas corpus under 28 U.S.C. § 2254.
petition filed on July 20, 2016, Petitioner challenges a July
10, 1996 conviction in the Superior Court of California,
County of Fresno for attempted murder with use of a firearm.
Petitioner was sentenced to an indeterminate state prison
term of six years to life.
review of the Court's dockets and files shows Petitioner
has previously sought habeas relief with respect to this
conviction. In case number 1:06-cv-01498-AWI-SMS (HC),
Petitioner challenged the same underlying conviction. On June
14, 2007, the petition was denied as untimely. (See Wright
v. Kirkland, E.D. Cal. Case No. 1:06-cv-01498-AWI-SMS (HC),
ECF Nos. 14, 16.)
must dismiss a second or successive petition that raises the
same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). A
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 constitutional right, made
retroactive by the United States Supreme Court 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
requirements; the Petitioner must first file a motion with
the appropriate court of appeals to be authorized to file a
second or successive petition with the district court.
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.
Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir.
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 makes no showing that he has obtained prior leave
from the Ninth Circuit to file his successive petition
attacking the conviction. That being so, this Court has no
jurisdiction to consider Petitioner's renewed application
for relief under Section 2254 and must dismiss the petition.
See Greenawalt, 105 F.3d at 1277. If Petitioner
desires to proceed in bringing this petition for writ of
habeas corpus, he must file for leave to do so with the Ninth
Circuit. See 28 U.S.C. § 2244(b)(3).
Order and Recommendation
Court RECOMMENDS that the petition for writ of habeas corpus
be DISMISSED as successive. Further, the Court ORDERS the
Clerk of Court to assign a District Court judge to the
findings and recommendations are submitted to the United
States District Court Judge assigned to the case, pursuant to
the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
the Local Rules of Practice for the United States District
Court, Eastern District of California. Within thirty (30)
days after being served with a copy, 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."
Replies to the objections shall be served and filed within
fourteen (14) days (plus three days if served by mail) after
service of the objections. The Court will then review the
Magistrate Judge's ruling pursuant to 28 U.S.C. § 636
parties are advised that failure to file objections within
the specified time may waive the right to appeal the District
Court's order. Wilkerson ...