United States District Court, E.D. California
(30) DAY OBJECTION DEADLINE
FINDINGS AND RECOMMENDATION TO DISMISS SUCCESSIVE
PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C.
§ 2244(b) (ECF No. 1)
Michael J. Seng UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se. He initiated this
action on January 9, 2017, with a document styled “For
Injunction Under 28 U.S.C. § 2284, Admiralty
Jurisdiction.” (ECF No. 1.) The petition challenges
Petitioner's conviction in Case No. MCR015203 in the
Superior Court of California, County of Madera, and seeks his
release from custody. Accordingly, it is construed as a
petition for writ of habeas corpus under 28 U.S.C. §
2254. Debbie Asuncion, Warden of California State Prison, Los
Angeles County is hereby substituted as the proper named
respondent pursuant to Rule 25(d) of the Federal Rules of
No. MCR015203, Petitioner was convicted of second degree
murder, assault with a semiautomatic weapon, and possession
of a firearm by a convicted felon. He was sentenced to an
indeterminate state prison term of fifteen years to life on
count one, plus twenty-five years to life for the gun
enhancement. He was sentenced to additional determinate state
prison terms on the other counts. See People v.
McClendon, No. F054975, 2009 WL 2940222, at *1
(Cal.Ct.App. Sept. 15, 2009).
review of the Court's dockets and files shows Petitioner
has previously sought habeas relief with respect to this
conviction. In case number 1:12-cv-00927-LJO-MJS (HC),
Petitioner challenged the same underlying conviction. On June
26, 2013, the petition was dismissed as
untimely. See McClendon v. Virga, No.
1:12-CV-00927-LJO-MJS, 2013 WL 1641370 (E.D. Cal. Apr. 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 the 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. 1997).
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).
Conclusion and Recommendation
Court HEREBY RECOMMENDS that the petition for writ of habeas
corpus be DISMISSED as successive.
findings and recommendation are submitted to the assigned
United States District Court Judge, pursuant to the
provisions of 28 U.S.C. section 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, Petitioner may file
written objections with the Court. Such a document should be
captioned “Objections to Magistrate Judge's
Findings and Recommendation.” The Court will then
review the Magistrate Judge's ruling pursuant to 28
U.S.C. § 636 (b)(1)(C). Petitioner is advised that
failure to file objections within the specified time may
result in the waiver of rights on appeal. Wilkerson v.
Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing
Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir.