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Tyler v. Superior Court of San Bernardino County

United States District Court, E.D. California

November 8, 2017

ELONZA JESSE TYLER, Petitioner,
v.
THE SUPERIOR COURT OF SAN BERNARDINO COUNTY, Respondent.

          ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AS SUCCESSIVE, DIRECTING CLERK OF COURT TO CLOSE CASE, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the United States Magistrate Judge. (ECF No. 7).

         I.

         DISCUSSION

         A. 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, a petitioner must obtain leave from the Ninth Circuit before he can file a second or successive petition in 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 a 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 1997, Petitioner pleaded guilty to attempted murder in the San Bernardino County Superior Court. Petitioner was sentenced to an imprisonment term of seven years to life plus six years. (ECF No. 1 at 2).[1] In the instant petition, Petitioner asserts that his sentence is in excess of the maximum authorized by law, challenges the Board of Parole Hearings' calculation of his release date, and requests specific performance of his plea agreement. (ECF No. 1 at 7, 16, 21). The petition states that Petitioner previously raised these same claims in the United States District Court for the Central District of California. (ECF No. 1 at 4). Petitioner sought prior federal habeas relief with respect to these claims in Tyler v. Sherman, No. EDCV 16-273-DOC (AJW), 2016 WL 3982335 (C.D. Cal. May 31, 2016), report and recommendation adopted, 2016 WL 3982305 (C.D. Cal. July 22, 2016).[2] The United States District Court for the Central District of California dismissed as successive Petitioner's challenge to his 1997 conviction and sentence and denied the remainder of the petition regarding the Parole Board's actions and the alleged breach of the plea agreement. Id.

         Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file the instant petition.[3] If 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.

         B. Certificate of Appealability

         A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings.
(c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to ...

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