Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fisher v. People

United States District Court, E.D. California

July 11, 2017

GARY FRANCIS FISHER, aka SONNY BARGER, aka GARY DALE BARGER, Petitioner,
v.
PEOPLE, [1] Respondent.

          ORDER DENYING PETITIONER'S MOTION TO BE HEARD (ECF No. 8) FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I.

         DISCUSSION

         On June 8, 2017, Petitioner filed the instant federal petition for writ of habeas corpus in the United States District Court for the Central District of California. (ECF No. 1). On June 12, 2017, the petition was transferred to this Court. (ECF No. 4). The petition challenges Petitioner's 2012 Kern County Superior Court conviction and sentence for assault. (ECF No. 1 at 1).[2]

         A. Motion to be Heard

         On June 30, 2017, the Court received a document entitled “Motion to be heard.” (ECF No. 8). Therein, Petitioner complains of the Fresno Division of the United States District Court for the Eastern District of California using Petitioner's “old name.” Petitioner asserts his intention to sue various persons for libel and slander after he gets out of prison. (Id. at 1). Petitioner signs the motion as “Sir Arthur of Sonny Barger II.” (Id. at 2). It is unclear what action, if any, Petitioner is requesting of the Court at this time. Accordingly, the motion is denied.

         B. Unauthorized Successive Petition

         Rule 4 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.”

         A 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 requirements. Section 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, Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive petition in the district court. See Felker v. Turpin, 518 U.S. 651, 656- 657 (1996). This Court must dismiss any second or successive petition unless the Court of Appeals has given 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 (2007).

         In the instant petition, Petitioner challenges his 2012 Kern County Superior Court conviction and sentence for assault. (ECF No. 1 at 1). Petitioner previously filed a federal habeas petition in this Court challenging the same conviction and sentence. See Barger v. Rackley, No. 1:14-cv-00946-LJO-MJS (dismissed as untimely); Barger v. Muellar, No. 1:16-cv-00412-LJO-SAB (dismissed as unauthorized successive petition); Fisher v. United States, No. 1:16-cv-01902-AWI-SKO (dismissed as unauthorized successive petition); Fisher v. Sacramento County Superior Courts, No. 1:17-cv-00650-LJO-MJS (dismissed as unauthorized successive petition).[3]

         The Court finds that the instant petition is “second or successive” under § 2244(b). See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding “dismissal of a first habeas petition for untimeliness presents a ‘permanent and incurable' bar to federal review of the underlying claims, ” and thus renders subsequent petitions “second or successive”). Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file this petition. As Petitioner has not obtained prior leave from the Ninth Circuit to file this successive petition, 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. at 157.

         II.

         RECOMMENDATION ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.