United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS FOR DISMISSAL OF
PETITIONER AS SECOND OR SUCCESSIVE COURT CLERK TO ASSIGN
DISTRICT JUDGE (DOC. 1)
K. OBERTO, UNITED STATES MAGISTRATE JUDGE
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.
Procedural and Factual Background
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.
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,
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).
No District Court Jurisdiction Over a Second or
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).
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.
Certificate of Appealability
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
(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