United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
is a state prisoner, proceeding pro se, with an application
for a writ of habeas corpus pursuant to 28 U.S.C. §
2254. Respondent filed a motion to dismiss this action as
successive and, in the alternative, barred by the one-year
statute of limitations. Petitioner filed an opposition;
respondent did not file a reply.
forth below, the undersigned recommends that the motion to
dismiss be granted.
Joaquin County Superior Court jury found petitioner guilty of
murder, three counts of attempted murder, and participation
in a street gang, as well as enhancements for personal and
intentional discharge of a firearm during the commission of a
felony, causing great bodily injury or death, participation
in an offense where a principal personally and intentionally
discharged a firearm, causing great bodily injury or death,
and the commission of an offense to benefit a street gang. In
March 2007, the trial court sentenced petitioner to life in
prison without the possibility of parole, plus four
indeterminate terms of twenty-five years to life and a
determinate term of forty-two years and four months. The
California Court of Appeal, Third Appellate District,
affirmed petitioner's conviction and sentence in an
unpublished opinion. The California Supreme Court denied review
on April 22, 2010.
Is the Petition Successive?
court's records reveal that petitioner has previously
filed an application for a writ of habeas corpus attacking
the 2007 conviction and sentence challenged in this case. The
previous application was filed on January 18, 2011, and was
denied on the merits on October 22, 2012. Benson v.
Biter, 2:11-cv-0150 JKS (E.D. Cal.). The petition is
successive because petitioner challenged his 2007 conviction
in his prior federal habeas petition, which the court
dismissed on the merits. See Burton v. Stewart, 549
U.S. 147, 153 (2007) (petition is successive if it challenges
“the same custody imposed by the same judgment of a
state court” as a prior petition). Petitioner must
therefore obtain permission from the Ninth Circuit before the
petition may proceed. See 28 U.S.C. §
2244(b)(3)(A) (“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.”); see also Woods v.
Carey, 525 F.3d 886, 888 (9th Cir. 2008) (“Even if
a petitioner can demonstrate that he qualifies for one of
these exceptions [to the bar on successive petitions], he
must seek authorization from the court of appeals before
filing his new petition with the district
court.”). No. such authorization has been obtained
in this case.
petitioner can proceed with the instant application, he must
move in the United States Court of Appeals for the Ninth
Circuit for an order authorizing the district court to
consider the application. 28 U.S.C. § 2244(b)(3).
Therefore, petitioner's application must be dismissed
without prejudice to its re-filing upon obtaining
authorization from the United States Court of Appeals for the
Is the Petition Time-Barred?
petitioner failed to obtain authorization from the Court of
Appeals for the Ninth Circuit, this court need not address
respondent's alternative argument that the petition is
barred by the one year statute of limitations.
accordance with the above, IT IS HEREBY RECOMMENDED that:
1. Respondent's motion to dismiss (ECF No. 13) be