United States District Court, E.D. California
KENNETH L. FAULKNER, JR., Petitioner,
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF
PETITION FOR WRIT OF HABEAS CORPUS
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
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.”
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. §
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
instant petition, Petitioner challenges his 2006 convictions
in the Kern County Superior Court for violations of
California Penal Code section 647.6. (ECF No. 1 at
1).Petitioner previously filed federal habeas
petitions in this Court challenging the same convictions.
See Faulkner v. Mule Creek State Prison, No.
1:08-cv-00806-JMD (denied with prejudice); Faulkner v.
Knipp, No. 1:11-cv-01163-LJO-MJS (dismissed as
unauthorized successive petition); Faulkner v.
Spearman, No. 1:17-cv-00695-DAD-SKO (findings and
recommendation to dismiss petition as
Court finds that the instant petition is “second or
successive” under § 2244(b). 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.
IT IS HEREBY RECOMMENDED that the petition for writ of habeas
corpus be DISMISSED as successive.
Findings and Recommendation is submitted to the United States
District Court Judge assigned to the case, pursuant to the
provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of
the Local Rules of Practice for the United States District
Court, Eastern District of California. Within THIRTY
(30) days after service of the Findings and
Recommendation, Petitioner may file written objections with
the Court and serve a copy on all parties. Such a document
should be captioned “Objections to Magistrate
Judge's Findings and Recommendation.” The assigned
District Judge will then review the Magistrate Judge's
ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Petitioner
is advised that failure to file objections within the
specified time may result in the waiver of rights on appeal.
Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir.
2014) (citing Baxter v. Sullivan, 923 F.2d 1391,
1394 (9th Cir. 1991)).