United States District Court, E.D. California
FINDINGS AND RECOMMENDATION
M. KELLISON UNITED STATES MAGISTRATE JUDGE.
a state prisoner proceeding pro se, brings this petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Pending before the court is petitioner's petition for a
writ of habeas corpus (Doc. 1).
18, 2017, the court issued an order to show cause why this
case should not be dismissed as a second or successive
petition filed without authorization. On July 20, 2017,
petitioner filed a response to the order to show cause.
However, as discussed below, petitioner fails to show cause
why this action should not be dismissed.
order to show cause, the undersigned set forth the following:
Rule 4 of the Federal Rules Governing Section 2254 Cases
provides for summary dismissal of a habeas petition
“[i]f it plainly appears from the face of the petition
and any exhibits annexed to it that the petitioner is not
entitled to relief in the district court.” In the
instant case, it is plain that petitioner is not entitled to
federal habeas relief. This is petitioner's second
petition for a writ of habeas corpus filed in this court,
challenging the same conviction.
Under 28 U.S.C. § 2244(b)(1), “[a] claim presented
in a second or successive habeas corpus application . . .
that was presented in a prior application shall be
dismissed.” Under § 2244(b)(2), “[a] claim
presented in a second or successive habeas corpus application
. . . that was not presented in a prior application shall be
dismissed . . .” unless one of two circumstances exist.
Either the newly raised claim must rely on a new rule of
constitutional law, or the factual predicate of the new claim
could not have been discovered earlier through the exercise
of due diligence and the new claim, if proven, establishes
actual innocence. See id. Before a second or
successive petition potentially permissible under §
2244(b)(2) can be filed, the petitioner must first obtain
leave of the Court of Appeals. See 28 U.S.C. §
2244(b)(3). In the absence of proper authorization from the
Court of Appeals, the district court lacks jurisdiction to
consider a second or successive petition and must dismiss it.
See Cooper v. Calderon, 274 F.3d 1270 (9th Cir.
2001) (per curiam).
A second petition can only be successive of a prior petition
which has been decided on the merits. Woods v.
Carey, 525 F.3d 886, 888 (9th Cir. 2008). Where a prior
petition has been dismissed without prejudice for failure to
exhaust state court remedies, the dismissal does not result
in an adjudication on the merits and a habeas petition filed
in the district court after the initial petition was
dismissed is not second or successive. See Slack v.
McDaniel, 529 U.S. 473, 485-86 (2000). However, a
dismissal on statute of limitations grounds “renders
subsequent petitions second or successive for purposes of the
AEDPA, 28 U.S.C. § 2254(b).” McNabb v.
Yates, 576 F.3d 1028, 1030 (9th Cir. 2009).
Here, petitioner is challenging a 2011 conviction from Solano
County. He filed a prior petition, challenging the same
conviction, in 2013, case number 2:13-cv-2234-WBS-CMK. This
prior petition was dismissed as filed beyond the statue of
limitations. (See 2:13-cv-2234, Docs. 30, 32).
Judgment was entered on July 10, 2015, and the case was
closed. (See 2:13-cv-2234, Doc. 33). Petitioner then
appealed this court's decision to the Ninth Circuit Court
of Appeals, USCA case number 15-16624. (See
2:13-cv-2234, Docs. 35, 36). The Ninth Circuit denied
petitioner's request for a certificate of appealability.
(See 2:13-cv-2234, Doc. 39). Petitioner has not
provided the court with an authorization from the Court of
Appeals to file a second or successive petition. This court
therefore lacks jurisdiction to consider the pending
(Order, Doc. 5).
responded to the order to show arguing that he is actually
innocent, attempted to file his petition in the correct
court, and requesting the court to review the merits of his
petition. Petitioner does not support his claim of actual
innocence. However, even if he had, he simply makes his plea
to the wrong court. As petitioner was informed, as he
previously filed a petition for writ of habeas corpus, the
petition filed in this action is considered a second or
successive petition. In order to be allowed to file such a
petition, he must receive permission from the Ninth Circuit
Court of Appeals. Without that authorization, this court has
no jurisdiction to hear the merits of his petition.
on the foregoing, IT IS HEREBY RECOMMENDED that
petitioner's petition be summarily dismissed, without
prejudice, as a second or successive petition filed 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 14 days
after being served with these findings and recommendations,
any party may file written objections with the court.
Responses to objections shall be filed within 14 days after
service of objections. Failure to file objections ...