United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR
LACK OF JURISDICTION ORDER DIRECTING CLERK OF COURT TO ASSIGN
JENNIFER L. THURSTON UNITED STATES MAGISTRATE JUDGE.
September 18, 2019, Petitioner, Gary Francis Fisher (also
known as Gary Dale Barger and Sonny Barger), filed the
instant petition for writ of habeas corpus in this Court.
Because the petition is successive, the Court will recommend
it be DISMISSED.
of the Rules Governing § 2254 Cases requires the Court
to make 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 granted. Jarvis v.
Nelson, 440 F.2d 13, 14 (9th Cir. 1971).
federal court must dismiss a second or successive petition
that raises the same grounds as a prior petition. 28 U.S.C.
§ 2244(b)(1). The court must also dismiss a second or
successive petition raising a new ground unless the
petitioner can show that 1) the claim rests on a new,
retroactive, constitutional right or 2) the factual basis of
the claim was not previously discoverable through due
diligence, and these new facts establish by clear and
convincing evidence that but for the constitutional error, no
reasonable factfinder would have found the applicant guilty
of the underlying offense. 28 U.S.C. §
2244(b)(2)(A)-(B). However, it is not the district court that
decides whether a second or successive petition meets these
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." In other words, Petitioner
must obtain leave from the Ninth Circuit before he can file a
second or successive petition in district court. See
Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This
Court must dismiss any second or successive petition unless
the Court of Appeals has given Petitioner leave to file the
petition because a district court lacks subject-matter
jurisdiction over a second or successive petition. Burton
v. Stewart, 549 U.S. 147, 152 (2007); Cooper v.
Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001).
review of the Court's dockets, it appears that Petitioner
has previously sought federal habeas relief in this Court
with respect to the same conviction numerous times. See
Barger v. State of California, No. 1:14-cv-00946-LJO-MJS
(dismissed as untimely); Barger v. Muellar, No.
1:16-cv-00412-LJO-SAB (dismissed as successive); Fisher
v. Sacramento County Superior Courts, No.
1:17-cv-00650-LJO-MJS (same); Barger v. CDCR, et
al., No. 1:17-cv-01066-DAD-MJS (same); Barger v.
California Attorney General, No. 1:18-cv-00951-LJO-EPG
(same); Barger v. California Health Care Facility et
al., No. 1:18-cv-01462-LJO-SKO (same).
Court finds that the instant petition is “second or
successive” under 28 U.S.C. § 2244(b). See
McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009)
(holding “dismissal of a first habeas petition for
untimeliness presents a ‘permanent and incurable'
bar to federal review of the underlying claims, ” and
thus renders subsequent petitions “second or
successive”). Petitioner makes no showing that he has
obtained prior leave from the Ninth Circuit to file his
successive petition. Therefore, this Court has no
jurisdiction to consider Petitioner's renewed application
for relief under 28 U.S.C. § 2254 and must dismiss the
petition. See Burton, 549 U.S. at 157.
the Court DIRECTS the Clerk of Court to assign a district
judge to the case.
foregoing reasons, the Court RECOMMENDS that the petition be
DISMISSED as successive.
Findings and Recommendation is submitted to the United States
District Court Judge assigned to this case, pursuant to the
provisions 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. Within twenty-one days
after being served with a copy, Petitioner may file written
objections with the Court. Such a document should be
captioned “Objections to Magistrate Judge's
Findings and Recommendation.” The Court will then
review the Magistrate Judge's ruling pursuant to 28
U.S.C. § 636 (b)(1)(C). Petitioner is advised ...