United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT COURT DISMISS
PETITION AS SECOND OR SUCCESSIVE (Doc. 13)
K. OBERTO UNITED STATES MAGISTRATE JUDGE
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.
Relevant Procedural Background
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.
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.
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
No District Court Jurisdiction Over Second or Successive
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).
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.
Certificate of Appealability
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
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.
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
Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be ...