United States District Court, E.D. California
ORDER DISMISSING PETITION FOR WRIT OF HABEAS
John Anthony Buchanan is a state prisoner proceeding pro
se with a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner has consented to the
jurisdiction of the United States Magistrate Judge. (ECF No.
instant petition, Petitioner challenges his 2005 conviction
in the Fresno County Superior Court for carjacking. As
Petitioner has previously sought federal habeas relief with
respect to the challenged conviction, the Court finds that
dismissal of the petition is warranted pursuant to 28 U.S.C.
§ 2244(b) because it is an unauthorized successive
of the Rules Governing Section 2254 Cases requires
preliminary review of a habeas petition and allows a district
court to dismiss a petition before the respondent is ordered
to file a response, if it “plainly appears from the
petition and any attached exhibits that the petitioner is not
entitled to relief in the district court.” Rule 4,
Rules Governing Section 2254 Cases.
Unauthorized Successive Petition
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
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, a
petitioner must obtain leave from the Ninth Circuit before he
can file a second or successive petition in district court.
See Felker v. Turpin, 518 U.S. 651, 656-57 (1996).
This Court must dismiss any second or successive petition
unless the Court of Appeals has given a 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, 157
instant federal petition for writ of habeas corpus,
Petitioner challenges his 2005 conviction in the Fresno
County Superior Court for carjacking. (ECF No. 1 at
Petitioner previously sought federal habeas relief in this
Court with respect to the same conviction. See
Order, Buchanan v. Scribner, No.
1:08-cv-00304-LJO-WMW (E.D. Cal. Aug. 13, 2009) (denying
petition concerning “the April 2005 trial, [at which]
petitioner was convicted of carjacking”). The Court finds
that the instant petition is “second or
successive” under 28 U.S.C. § 2244(b). Petitioner
makes no showing that he has obtained prior leave from the
Ninth Circuit to file his successive petition. Therefore,
this Court has no jurisdiction to consider Petitioner's
renewed application for relief under 28 U.S.C. § 2254
and must dismiss the petition. See Burton, 549 U.S.
Certificate of Appealability
found that Petitioner is not entitled to habeas relief, the
Court now turns to the question of whether a certificate of
appealability should issue. See Rule 11, Rules
Governing Section 2254 Cases. A state 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).
controlling statute in determining whether to issue a
certificate of appealability is 28 U.S.C. § 2253, which
(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
(c) (1) Unless a circuit justice or judge issues a
certificate of appealability, an appeal may not be taken to