United States District Court, E.D. California
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
a state prisoner proceeding pro se, has filed an application
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254, together with an application to proceed in forma
pauperis. Petitioner has consented to the jurisdiction of the
undersigned United States Magistrate Judge for all purposes
pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a).
See ECF No. 4.
of the in forma pauperis application reveals that petitioner
is unable to afford the costs of suit. Accordingly, the
application to proceed in forma pauperis will be granted.
See 28 U.S.C. § 1915(a). However, for the
reasons discussed below, the $5.00 fee will be waived.
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
of the instant petition demonstrates that petitioner is
challenging his 2003 conviction and sentence. Review of
petitioner's exhibits and prior filings in this court
demonstrate that this is his second petition for writ of
habeas corpus filed pursuant to 28 U.S.C. §
2254. The first petition, which also challenged
petitioner's 2003 conviction and sentence, was filed in
this court on October 27, 2008. See Gerolaga v.
Evans, Case No. 2:08-cv-02542 LKK DAD P (E.D. Cal). On
March 10, 2010, the court granted respondent's motion to
dismiss because the petition was barred by the statute of
limitations and because petitioner failed to allege facts
supporting his actual innocence under Schlup v.
Delo, 513 U.S. 298 (1995).
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)).
principal claims asserted in the present case - three claims
premised on the alleged ineffective assistance of trial
counsel, and one claim against the trial court asserting
double jeopardy - could have been adjudicated on the
merits in a timely-filed federal habeas proceeding. The
untimeliness of petitioner's first petition, precluding
any merits consideration, does not alter the fact that
petitioner's instant petition is successive. Petitioner
is “contesting the same custody imposed by the same
judgment of a state court, ” and is therefore
“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. Petitioner's request to proceed in forma pauperis, ECF
No. 5, is granted; nevertheless, the $5.00 filing fee is
2. Petitioner's petition for a writ of habeas corpus, ECF
No. 1, is dismissed without prejudice to its refiling with a
copy of an order from the Ninth Circuit Court of Appeals that
authorizes petitioner to file a second or successive
3. The Clerk of Court is directed to close this case.