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Faulkner v. Spearman

United States District Court, E.D. California

June 12, 2017

KENNETH LEWIS FAULKNER, Petitioner,
v.
M. ELIOT SPEARMAN, Warden, High Desert State Prison, Respondent.

          FINDINGS AND RECOMMENDATION THAT COURT DISMISS PETITION AS SECOND OR SUCCESSIVE

          SHEILA K. OBERTO UNITED STATES MAGISTRATE JUDGE

         Petitioner 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.

         I. Procedural and Factual Background

         On 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.

         On May 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.

         On July 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.

         Petitioner 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. 1:17-cv-00752-JLT HC).

         II. No District Court Jurisdiction Over a Second or Successive Petition

         The 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).

         Petitioner 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.

         III. Certificate of Appealability

         A 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 provides:

(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 ...

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