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K'Napp v. Unknown

United States District Court, E.D. California

June 15, 2017

ERIC CHARLES RODNEY KNAPP, Petitioner,
v.
UNKNOWN, Respondent.

          ORDER AND FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.

         Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

         I. Application to Proceed In Forma Pauperis

         Examination of the in forma pauperis application reveals that petitioner is unable to afford the costs of suit. (ECF No. 6.) Accordingly, the application to proceed in forma pauperis will be granted. See 28 U.S.C. § 1915(a).

         II. Petition

         In the instant petition, petitioner challenges his 1992 convictions for sexual assault in Sacramento County Superior Court Case No. CR118548. (ECF No. 1 at 3.) He received “an aggregate term of 98 years in prison.” (Id.) The petition asserts numerous grounds for relief, including that evidence that was newly discovered in 1997, 2001, 2002, and 2004, proves his innocence. (Id. at 65-73, 75-76.)

         The petition indicates (id. at 62, 67-68, 73, 77), and the court's records confirm, that petitioner has previously filed an application for a writ of habeas corpus attacking the conviction and sentence challenged in this case and that the previous petition included the same claims of actual innocence and newly discovered evidence raised in the instant petition. The previous application was filed by the Clerk of the Court on March 21, 2008, and the claims were dismissed as either untimely or on the merits on February 26, 2009, and September 26, 2011. Knapp v. Warden of Salinas Valley State Prison, No. 2:08-cv-01040 JFM (E.D. Cal.), ECF Nos. 1, 28, 46. This court takes judicial notice of the record in that proceeding. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other cases.”).

         Under 28 U.S.C. § 2244(b)(3)(A), a second or successive application for habeas relief may not be filed in district court without prior authorization by the court of appeals. Felker v. Turpin, 518 U.S. 651, 657 (1996). Prior authorization is a jurisdictional requisite. Burton v. Stewart, 549 U.S. 147, 152-53 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (once district court has recognized a petition as second or successive pursuant to § 2244(b), it lacks jurisdiction to consider the merits). “A habeas petition is second or successive only if it raises claims that were or could have been adjudicated on the merits.” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008)). The Ninth Circuit has held “that the dismissal of a habeas petition as untimely constitutes a disposition on the merits and that a further petition challenging the same conviction would be ‘second or successive' for purposes of 28 U.S.C. § 2244(b).” Id.

         Before petitioner can proceed with the instant application, he must move in the United States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). While it appears that petitioner did attempt to simultaneously file this petition with the Ninth Circuit, it is equally clear that in ordering the petition filed in this court, the Ninth Circuit was not granting leave to file a second or successive petition, but instead believed that petitioner had erroneously filed an original petition in that court. Knapp v. Unknown, No. 2:16-cv-02983 JAM CKD (E.D. Cal), ECF Nos. 1, 3. Since petitioner has not yet been granted leave to file a second or successive petition, the instant application must be dismissed without prejudice to its refiling upon obtaining authorization from the United States Court of Appeals for the Ninth Circuit.

         Accordingly, IT IS HEREBY ORDERED that petitioner's motion to proceed in forma pauperis (ECF No. 6) is granted.

         IT IS FURTHER RECOMMENDED that this action be dismissed without prejudice.

         These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned “Objections to Magistrate Judge's Findings and Recommendations.” If petitioner files objections, he shall also address whether a certificate of appealability should issue and, if so, why and as to which issue(s). Where, as here, the petition was dismissed on procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the district court was correct in its procedural ruling'; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right.'” Morris v. Woodford, 229 F.3d 775, ...


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