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King v. Fisher

United States District Court, E.D. California

May 22, 2018

ALTON KING, Petitioner,
v.
WARDEN RAYTHEL FISHER, Respondent.

          FINDINGS AND RECOMMENDATIONS FOR DISMISSAL OF PETITIONER AS SECOND OR SUCCESSIVE COURT CLERK TO ASSIGN DISTRICT JUDGE (DOC. 1)

          SHEILA K. OBERTO, UNITED STATES MAGISTRATE JUDGE

         Screening Order

         Petitioner, Alton King, is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition alleges one claim for habeas relief: the state court erred in calculating his credits. Because Petitioner has filed two previous habeas petitions concerning the same conviction, the Court will recommend dismissing the petition as second or successive.

         I. Procedural and Factual Background

         Petitioner was convicted in Santa Clara County Superior Court of continuous sexual abuse of a child under fourteen years of age (Cal. Penal Code § 288.5(a)) and committing a lewd and lascivious act on a child under fourteen (Cal. Penal Code § 288(a)). People v. King, No. H032896, 2009 WL 4818067 (Cal.Ct.App. Dec. 15, 2009). Petitioner was sentenced to a prison term of 18 years. Id.

         On June 7, 2011, Petitioner filed a petition for federal habeas relief pursuant to 28 U.S.C § 2254, which the Court denied. King v. Adams, No. C 11-02792-SI, 2014 WL 4646581 (N.D. Cal. Aug. 26, 2014). Petitioner filed the above-captioned petition on April 2, 2018 in the United States District Court for the Northern District of California. The case was transferred to this Court on May 15, 2018.

         II. Preliminary Screening

         Rule 4 of the Rules Governing § 2254 cases requires the Court to conduct a preliminary review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it appears that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d 13, 14 (9th Cir. 1971).

         III. No District Court Jurisdiction Over a Second or Successive Petition

         The circuit court of appeals, not the district court, must decide whether a second or successive petition satisfies the statutory requirements to proceed. 28 U.S.C. § 2244(b)(3)(A) ("Before a second or successive petition 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"). This means that a petitioner may not file a second or successive petition in district court until he has obtained leave from the court of appeals. Felker v. Turpin, 518 U.S. 651, 656-57 (1996). In the absence of an order from the appropriate circuit court, a district court lacks jurisdiction over the petition and must dismiss the second or successive petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997).

         Petitioner has not secured leave from the Ninth Circuit Court of Appeals to file the above-captioned petition. Accordingly, the Court must dismiss it for lack of jurisdiction.

         III. Certificate of Appealability

         A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court's denial of his petition, but may only appeal 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:

(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 ...

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