United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254. This
action is referred to the undersigned United States
Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 302(c).
order filed February 15, 2017, this court directed petitioner
to submit an application to proceed in forma pauperis or the
$5.00 filing fee. See ECF No. 9. That order was
served on petitioner's then current address of record,
California State Prison Sacramento. Review of the Inmate
Locator website operated by the California Department of
Corrections and Rehabilitationindicates that petitioner is now
incarcerated at High Desert State Prison. Accordingly, the
Clerk of Court will be directed to indicate on the docket
petitioner's current address and to serve a copy of this
order on petitioner at High Desert State Prison.
the court's last order, review of the instant petition
and petitioner's other filings in this court demonstrate
that he is pursuing in this case a second petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2254.
Petitioner's first habeas petition was filed in this
court in December 2012 and dismissed in 2013 because barred
by the statute of limitations. See Stribling v.
Grounds, Case No. 2:12-cv-03084 MCE KJN P (E.D. Cal.).
Both that petition and the instant petition challenge
petitioner's 2007 conviction.
Rule 4 of the Rules Governing Section 2254 Cases, this court
is required to conduct a preliminary review of all petitions
for writ of habeas corpus filed by state prisoners. Pursuant
to Rule 4, this court must summarily dismiss a petition if it
“plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
second or successive application for habeas relief may not be
filed in district court without prior authorization from the
Ninth Circuit Court of Appeals. See 28 U.S.C. §
2244(b); Felker v. Turpin, 518 U.S. 651, 656-57
(1996). Prior authorization is a jurisdictional requisite.
Burton v. Stewart, 549 U.S. 147, 152 (2007);
Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir.
2001) (once district court has recognized a petition as
second or successive pursuant to § 2244(b), it lacks
jurisdiction to consider the merits). The district court has
discretion either to transfer a successive petition to the
Court of Appeals or to dismiss the petition. United
States v. Winestock, 340 F.3d 200 (4th Cir. 2003)
(§ 2255 case); Robinson v. Johnson, 313 F.3d
128, 139-140 (3rd Cir. 2002).
petition is successive within the meaning of 28 U.S.C. §
2244(b) where it “seeks to add a new ground for relief,
” or “if it attacks the federal court's
previous resolution of a claim on the merits . . .”
Gonzalez v. Crosby, 545 U.S. 524, 532 (2005)
(emphasis deleted). “[A] ‘claim' as used in
§ 2244(b) is an asserted federal basis for relief from a
state court's judgment of conviction.” Id.
at 530. “A habeas petition is second or successive only
if it raises claims that were or could have been adjudicated
on the merits.” McNabb v. Yates, 576 F.3d
1028, 1029 (9th Cir.2009) (citing Woods v. Carey,
525 F.3d 886, 888 (9th Cir.2008)).
is presently “contesting the same custody imposed by
the same judgment of a state court” that he challenged
in Stribling v. Grounds, Case No. 2:12-cv-03084 MCE
KJN P (E.D. Cal); therefore he is “required to receive
authorization from the Court of Appeals before filing his
second challenge. Because he did not do so, the District
Court [is] without jurisdiction to entertain it.”
Burton, 549 U.S. at 153.
IT IS HEREBY ORDERED that:
1. The Clerk of Court is directed to indicate on the docket
petitioner's current address of record is High Desert
State Prison; and
2. The Clerk of Court is directed to randomly assign a
district judge to this action.
IT IS HEREBY RECOMMENDED that:
1. Petitioner's petition for writ of habeas corpus, ECF
No. 1, be dismissed without prejudice to its refiling with a
copy of an order from the Ninth Circuit Court of Appeals
authorizing petitioner ...