United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS THAT COURT DISMISS
UNAUTHORIZED SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS
FOR LACK OF JURISDICTION ECF NO. 1 ORDER DIRECTING CLERK OF
COURT TO ASSIGN CASE TO DISTRICT JUDGE
Gary Francis Fisher, state prisoner without counsel, filed
more than twenty petitions for habeas relief after his
conviction of assault with a deadly weapon. At least seven of
those petitions challenged the state-court judgment entered
in 2012. See Fisher v. Rackley, No. 2:14-cv-2135,
2014 WL 7335677, at *2 (E.D. Cal. Dec. 19, 2014); People
v. Barger, No. BF134705A (Kern Cty. Sup. Ct. Jan. 6,
2012). In this case, petitioner has filed another petition
challenging the same state-court judgment. ECF No. 1 at 1.
The matter is before the court for preliminary review under
Rule 4 of the Rules Governing Section 2254 Cases. Under Rule
4, the judge assigned to the habeas proceeding must examine
the habeas petition and order a response to the petition
unless it “plainly appears” that the petitioner
is not entitled to relief. See Valdez v. Montgomery,
918 F.3d 687, 693 (9th Cir. 2019); Boyd v. Thompson,
147 F.3d 1124, 1127 (9th Cir. 1998).
Second or Successive Petition
federal court will not consider a second or successive habeas
corpus petition unless the petitioner shows that (1) his
claim relies on a new rule of constitutional law, made
retroactive by the Supreme Court, that was previously
unavailable or (2) the factual predicate for the claim could
not have been discovered previously through the exercise of
due diligence. See 28 U.S.C. § 2244(b)(2). A
district court may not decide whether a second or successive
petition meets these requirements; the petitioner must obtain
the authorization from the appropriate court of appeals
before filing the petition. See 28 U.S.C. §
2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 157
(2007). The authorization from the appropriate court of
appeals is a jurisdictional requirement. See Burton,
549 U.S. at 157.
petitioner contends that his custody violates the
Constitution. He argues:
Kern County on Case #BF134705A used 9 Judges denying me of a
presiding Judge, and utilized 8 District Attorneys and 5
Public Defenders, violating my 14th Amendment of the U.S.
Constitution . . . Due process in a mere 14th month long
trial, That is 22 Court Officers, Due Process and Equal
Protection of the Law.
ECF No. 1 at 1. However, before pursuing a successive habeas
corpus petition, he must first obtain authorization to do so
from the Ninth Circuit. Because the Ninth Circuit has not
authorized petitioner to pursue a second or successive
petition, this court lacks jurisdiction over this case.
See Burton, 549 U.S. at 157. The court must dismiss
the case for lack of jurisdiction.
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). Where, as here, the court denies habeas
relief on procedural grounds without reaching the underlying
constitutional claims, the court should issue a certificate
of appealability “if jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). “Where a plain
procedural bar is present and the district court is correct
to invoke it to dispose of the case, a reasonable jurist
could not conclude either that the district court erred in
dismissing the petition or that the petitioner should be
allowed to proceed further.” Id.
reasonable jurists would not find our conclusion debatable or
conclude that petitioner 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 recommendations
recommend that the court dismiss the petition, ECF No. 1, for
lack of jurisdiction and decline to issue a certificate of
28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules
of Practice for the United States District Court, Eastern
District of California, I submit these findings and
recommendations to the U.S. District Court Judge who will be
assigned to the case. Within fourteen days of the service of
the findings and recommendations, petitioner may file written
objections to the findings and recommendations with the court
and serve a copy on all parties. That document must be
captioned “Objections to Magistrate Judge’s