United States District Court, E.D. California
DISMISSING SUCCESSIVE PETITION FOR WRIT OF HABEAS
DIRECTING CLERK OF COURT TO ENTER JUDGMENT AND CLOSE
DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE
18, 2000, Petitioner was convicted in the Fresno County
Superior Court of second degree murder with gun enhancements.
Petitioner was sentenced to an indeterminate term of
forty-years-to-life. Petitioner sought review in the state
petition challenges the 2000 conviction and presents a claim
of ineffective assistance of counsel. However, the instant
petition is successive. Petitioner has filed two prior habeas
petitions concerning the 2000 conviction: Case No.
1:06-cv-00222-LJO-TAG-HC, Cole v. Gonzales
(dismissed for failure to prosecute); and Case No.
1:11-cv-00800-GSA-HC, Cole v. On Habeas Corpus
(dismissed as successive).
dismissal for failure to prosecute is treated as a judgment
on the merits. Plaut v. Spendthrift Farm, Inc., 514
U.S. 211, 228 (1995); Reyes v. United States, 1999
WL 1021815 *3 (E.D.N.Y.1999) (dismissal of first habeas
petition for failure to prosecute pursuant to Fed.R.Civ.P.
41(b) constitutes dismissal on the merits and renders
subsequently filed habeas petition second or successive). If
a previous petition is deemed to have been decided on the
merits, then a subsequent petition raising the same claims or
challenging the same conviction is treated as a successive
petition pursuant to 28 U.S.C. § 2244(b). A federal
court must dismiss a second or successive petition that
raises the same grounds as a prior petition. 28 U.S.C. §
2244(b)(1). The 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,
retroactive, constitutional right 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, which allow a petitioner to file a second or
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 she can file
a second or successive petition in 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. Burton
v. Stewart, 549 U.S. 147, 152 (2007); Cooper v.
Calderon, 274 F.3d 1270, 1274 (9th Cir.
the current petition was filed after April 24, 1996, the
provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA) apply to Petitioner's current
petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997).
Petitioner makes no showing that she has obtained prior leave
from the Ninth Circuit to file her successive petition
attacking the conviction. That being so, this Court has no
jurisdiction to consider Petitioner's renewed application
for relief from that conviction under Section 2254 and must
dismiss the petition. See Greenawalt, 105 F.3d at
1277; Nunez, 96 F.3d at 991.
prisoner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his
petition, and an appeal is only allowed 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 as follows:
(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 ...