United States District Court, E.D. California
ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO
DISTRICT JUDGE ORDER VACATING SCHEDULING ORDER ECF NO. 5
FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF
HABEAS CORPUS FOR LACK OF JURISDICTION ECF NO. 1
Gregory W Stewart, a state prisoner without counsel, seeks a
writ of habeas corpus under 28 U.S.C. § 2254. ECF No. 1.
We screened the petition and directed a response from the
government. ECF No. 5. Petitioner then submitted a large pile
of exhibits before the government responded to the petition.
The exhibits from petitioner include his submissions in other
habeas cases. As it turns out, petitioner has filed numerous
other habeas cases over the years, and the court in those
cases rejected the same habeas claims petitioner now raises
in this case. Because the petition is an unauthorized
successive petition, we lack jurisdiction to consider it. We
will vacate the order requiring a response to the petition
and recommend that the court dismiss the petition.
its volume, the exhibit pile has not been filed on the
docket, but it is stored in the file room of this court's
Fresno Division. The fact that the exhibits have not been
docketed does not preclude us from dismissing the case,
because the pertinent opinions in petitioner's other
cases are available to the public. See Stewart v.
Macomber, No. 1:17-cv-1100, ECF No. 7 (E.D. Cal. Sep. 7,
2017) (Grosjean, J.); Stewart v. Macomber, No.
1:12-cv-594, ECF No. 9 (E.D. Cal. May 4, 2012) (Thurston,
J.); Stewart v. Macomber, No. 1:09-cv-2212, ECF No.
10 (E.D. Cal. Mar. 4, 2010) (Thurston, J.). This court may
take judicial notice of its own records in other cases.
See Chavez v. Robinson, 817 F.3d 1162, 1166 (9th
federal court has an independent duty to examine its
jurisdiction. See Kwai Fun Wong v. Beebe, 732 F.3d
1030, 1036 (9th Cir. 2013). Discharging that duty requires
the court to ensure that an actual controversy exists at
every stage of litigation. See Bd. of Trs. of Glazing
Health & Welfare Tr. v. Chambers, 903 F.3d 829, 838
(9th Cir. 2018). Here, we lack jurisdiction because
petitioner has filed an unauthorized successive petition.
federal court must dismiss a successive petition that raises
the same claims as a prior petition. See 28 U.S.C.
§ 2244(b)(1). The court must also dismiss a successive
petition raising a new claim unless the petitioner can show
that the claim relies on (1) a new rule of constitutional law
that applies retroactively or (2) a new fact not previously
discoverable through due diligence. 28 U.S.C. §
2244(b)(2)(A)-(B). A court of appeals, not a district court,
decides whether a 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.
See also Felker v. Turpin, 518 U.S. 651, 656-57
(1996). Failure to obtain authorization from the appropriate
court of appeals is a jurisdictional defect, and the district
court presented with an unauthorized successive petition must
dismiss it for lack of jurisdiction. See Burton v.
Stewart, 549 U.S. 147, 157 (2007).
petitioner challenges his 1994 conviction from the Merced
County Superior Court for sale of a controlled substance.
See generally ECF No. 1. Petitioner has sought
federal habeas relief from this court in the past,
challenging the same conviction. See Stewart v.
McGrath, Nos. 1:00-cv-5452 (dismissed as untimely),
1:06-cv-1400 (dismissed as successive), 1:09-cv-685 (same),
1:09-cv-2212, 1:10-cv-954 (same), 1:11-814 (same),
1:12-cv-594 (same), 1:14-cv-266 (same), 1:15-cv-51 (same),
1:15-1592 (same), 1:16-cv-948, 1:16-cv-1428 (same),
1:17-cv-415 (same), 1:17-cv-683 (same), 1:17-cv-1100. This
court has rejected the identical habeas claims petitioner
raises now. See No. 1:17-cv-1100, ECF No. 7; No.
1:12-cv-594, ECF No. 9; No. 1:09-cv-2212, ECF No. 10. We lack
jurisdiction to consider the petition, so we must dismiss the
Certificate of Appealability
petitioner seeking a writ of habeas corpus has no absolute
right to appeal a district court's denial of a petition;
he may appeal only in limited circumstances. See 28
U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S.
322, 335-36 (2003). Rule 11 Governing Section 2254 Cases
requires a district court to issue or deny a certificate of
appealability when entering a final order adverse to a
petitioner. See also Ninth Circuit Rule 22-1(a);
United States v. Asrar, 116 F.3d 1268, 1270 (9th
Cir. 1997). A certificate of appealability will not issue
unless a petitioner makes “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. §
2253(c)(2). This standard requires the petitioner to show
that “jurists of reason could disagree with the
district court's resolution of his constitutional claims
or that jurists could conclude the issues presented are
adequate to deserve encouragement to proceed further.”
Miller-El, 537 U.S. at 327; see Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The petitioner must
show “something more than the absence of frivolity or
the existence of mere good faith.” Miller-El,
537 U.S. at 338.
jurists would not find our decision debatable or conclude
that the petition should proceed further. Thus, the court
should decline to issue a certificate of appealability.
clerk of court is directed to assign this case to a district
judge who will review the following findings and
Findings and ...