United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.
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).
Application to Proceed In Forma Pauperis
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).
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,
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.”).
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.
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.
IT IS HEREBY ORDERED that petitioner's motion to proceed
in forma pauperis (ECF No. 6) is granted.
FURTHER RECOMMENDED that this action be dismissed without
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,