United States District Court, E.D. California
ORDER AND FINDINGS AND RECOMMENDATIONS
ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254, and
request to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. This action is referred to the undersigned
United States Magistrate Judge pursuant to 28 U.S.C. §
636(b)(1)(B) and Local Rule 302(c).
of the in forma pauperis application reveals that petitioner
is unable to afford the costs of suit. See ECF Nos.
2, 5; see also 28 U.S.C. § 1915(a). However,
because the undersigned recommends dismissal of this action
without leave to amend, the undersigned recommends that
petitioner's request to proceed in forma pauperis be
denied as moot.
Rule 4 of the Rules Governing Section 2254 Cases, this court
is required to conduct a preliminary review of all petitions
for writs of habeas corpus filed by state prisoners. Pursuant
to Rule 4, this court must summarily dismiss a petition if it
“plainly appears from the petition and any attached
exhibits that the petitioner is not entitled to relief in the
of petitioner's current and previous filings in this
court demonstrates that the instant petition,
which challenges petitioner's 2001 conviction and
sentence, is successive. This court is without jurisdiction
to consider a successive petition for habeas relief under
Section 2254 without prior authorization from the Ninth
Circuit Court of Appeals, see 28 U.S.C. §
2244(b), which petitioner has not obtained.
initial petition challenging his 2001 conviction and sentence
was dismissed on August 28, 2001, for failure to exhaust
state court remedies. See Rameses v. State of
California, Case No. 2:00-cv-2710 DFL DAD P.
Petitioner's second petition was denied on the merits on
March 31, 2008, and the Ninth Circuit Court of Appeals
affirmed. See Rameses v. Lacey, Case No.
2:04-cv-1173 GEB GGH P. Petitioner twice sought relief from
the judgment in that case, and the court construed his
requests as successive habeas petitions and denied them on
that basis. Id. Petitioner's third petition,
entitled a “motion for extraordinary remedy of specific
performance as part of plea agreement, ” was construed
by the court as a petition for habeas relief under Section
2254, and dismissed without prejudice as successive. See
Rameses v. United States District Court et al., Case No.
2:11-cv-1292 GEB GGH P.
instant petition, designated a petition for writ habeas
corpus under 28 U.S.C. § 2254, see ECF No. 1 at
1, 16, again challenges petitioner's 2001 conviction and
sentence. Thus, petitioner is “contesting the same
custody imposed by the same judgment of a state court,
” Burton v. Stewart, 549 U.S. 147, 153 (2007),
that he has previously challenged in this court. A second or
successive petition under Section 2254 may not be considered
by the district court without prior authorization from the
Ninth Circuit Court of Appeals. See 28 U.S.C. §
2244(b); Felker v. Turpin, 518 U.S. 651, 656-57
(1996). Prior authorization is a jurisdictional requisite.
Burton, 549 U.S. at 152; 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).
petitioner is “required to receive authorization from
the Court of Appeals before filing his second challenge . . .
. [and] did not do so, the District Court [is] without
jurisdiction to entertain it.” Id For this
reason, the instant petition must be dismissed pursuant to
IT IS HEREBY ORDERED that the Clerk of Court is directed to
randomly assign a district judge to this action.
IT IS HEREBY RECOMMENDED that:
1. Petitioner's petition for writ of habeas corpus, ECF
No. 1, be dismissed without prejudice to its refiling with a
copy of an order from the Ninth Circuit Court of Appeals
authorizing petitioner to file a successive petition;
2. Petitioner's request to proceed in forma pauperis, ECF
No. 2, be denied as moot; and
3. The Clerk of Court be directed to close this case.
findings and recommendations are submitted to the United
States District Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Within twenty one
days after being served with these findings and
recommendations, petitioner may file written objections with
the court. Such document should be captioned
“Objections to Magistrate Judge's Findings and
Recommendations.” Petitioner is advised that failure to
file objections ...