United States District Court, E.D. California
FINDINGS AND RECOMMENDATION THAT COURT DISMISS
PETITION AS SECOND OR SUCCESSIVE
K. OBERTO UNITED STATES MAGISTRATE JUDGE
Kenneth Lewis Faulkner is a state prisoner proceeding pro
se with a petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254. Petitioner raises multiple grounds for
relief arising from his 2006 trial in Kern County. Because
Petitioner has filed previous habeas petitions concerning the
same conviction, the Court is required to dismiss the
petition as secondary or successive. The undersigned
recommends that it do so.
Procedural and Factual Background
February 8, 2006, following a jury trial in Kern County
Superior Court, Petitioner was convicted of one felony count
of annoying or molesting a child under the age of eighteen
(Cal. Penal Code § 647.6(c)(1)) and two misdemeanor
counts of annoying or molesting a child under the age of
eighteen (Cal. Penal Code § 647.6). The California Court
of Appeal affirmed Petitioner's conviction and sentence
on November 16, 2007. The California Supreme Court denied
review on February 27, 2008.
14, 2008, Petitioner filed a federal petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. See
Faulkner v. Mule Creek State Prison (E.D. Cal.) (No.
1:08-cv-00806-JMD HC), Doc. 1. The Court denied the petition
with prejudice on October 21, 2009. Id., Doc. 31.
14, 2011, Petitioner filed a second § 2254 petition.
See Faulkner v. Knipp (E.D. Cal.) (No.
1:11-cv-01163-LJO-MJS HC) Doc. 1. On November 22, 2011, the
Court dismissed the petition as second or successive and
declined to issue a certificate of appealability.
Id., Doc. 13. Petitioner sought to file a notice of
appeal in the U.S. Court of Appeal for the Ninth Circuit,
which also denied a certificate of appeal.
filed the above-captioned petition on May 19, 2017. On June
1, 2017, Petitioner filed another, substantially similar,
petition. Faulkner v. Davies (E.D. Cal.) (No.
No District Court Jurisdiction Over a Second or
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) 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 ...