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Talamantez v. Gastelo

United States District Court, E.D. California

April 20, 2017

ROBERT TALAMANTEZ, Petitioner,
v.
JOSIE GASTELO, Warden, Respondent.

          FINDINGS AND RECOMMENDATION THAT COURT DISMISS PETITION AS SECOND OR SUCCESSIVE (Doc. 13)

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         Petitioner Robert Talamantez is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moves to dismiss the petition as second or successive. The undersigned recommends that the Court grant the motion to dismiss.

         I. Relevant Procedural Background

         On June 22, 1987, a Fresno County jury convicted Petitioner of second degree murder and assault with a firearm subject to a gun enhancement (Cal. Penal Code §§ 187(a), 245, and 667). The state court sentenced him to a prison term of twenty years to life.

         In 1991, Petitioner filed a federal petition for writ of habeas corpus, which was dismissed as unexhausted. Talamantez v. Estelle (1:91-cv-00275-GEB-GGH). After exhausting his claims in state court, Petitioner filed another federal habeas petition in 1993. Talamantez v. Duncan (1:93-cv-05375-REC-GGH). The Court denied the petition on April 10, 1995.

         On November 10, 2016, Petitioner filed the above-captioned petition. Because of Petitioner previously pursued federal habeas relief in 1993, the current petition is second or successive.

         II. No District Court Jurisdiction Over Second or Successive Petition

         The circuit court of appeals, not the district court, must decide whether a second or successive petition satisfies the statutory requirements to proceed. 28 U.S.C. §2244(b)(3)(A) ("Before a second or successive petition 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"). This means that a petitioner may not file a second or successive petition in district court until he has obtained leave from the court of appeals. Felker v. Turpin, 518 U.S. 651, 656-57 (1996). In the absence of an order from the appropriate circuit court, a district court lacks jurisdiction over the petition and must dismiss the second or successive petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997).

         Petitioner has not secured leave from the Ninth Circuit Court of Appeals to file the above-captioned petition. Accordingly, the Court must dismiss it for lack of jurisdiction.

         III. Certificate of Appealability

         A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal 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:

         (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 removal proceedings.

         (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be ...


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