United States District Court, E.D. California
FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF
PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF
COURT TO RANDOMLY ASSIGN DISTRICT JUDGE
is a state prisoner proceeding pro se with a petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
of the Rules Governing Section 2254 Cases in the United
States District Courts requires preliminary review of a
habeas petition and allows a district court to dismiss a
petition before the respondent is ordered to file a response,
if it “plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief in the district court.” See McFarland v.
Scott, 512 U.S. 849, 856 (1994).
petitioner in state custody who is proceeding with a petition
for writ of habeas corpus must exhaust state judicial
remedies. 28 U.S.C. § 2254(b)(1). The exhaustion
doctrine is based on comity to the state court and gives the
state court the initial opportunity to correct the
state's alleged constitutional deprivations. Coleman
v. Thompson, 501 U.S. 722, 731 (1991); Rose v.
Lundy, 455 U.S. 509, 518 (1982). A petitioner can
satisfy the exhaustion requirement by providing the highest
state court with a full and fair opportunity to consider each
claim before presenting it to the federal court.
O'Sullivan v. Boerckel, 526 U.S. 838, 845
(1999); Duncan v. Henry, 513 U.S. 364, 365 (1995);
Picard v. Connor, 404 U.S. 270, 276 (1971).
Petitioner acknowledges that the claims that he raises in the
instant petition are currently pending in the Fresno County
Superior Court and the California Court of Appeal, Fifth
Appellate District. (ECF No. 1 at 6, 16, 17, 19, 21, 23, 26,
27, 30). If Petitioner has not sought relief in the
California Supreme Court, the Court cannot proceed to the
merits of his claims. 28 U.S.C. § 2254(b)(1).
Second or Successive Petition
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. §
it is not the district court that decides whether a second or
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.” In other words,
Petitioner must obtain leave from the Ninth Circuit before he
can file a second or successive petition in the 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, 157
instant petition, Petitioner challenges his 2000 Fresno
County Superior Court conviction for first-degree murder.
(ECF No. 1 at 1). Petitioner previously filed a federal
habeas petition in this Court challenging the same
conviction, and the petition was dismissed as untimely.
See Hanks v. Biter, No.
1:18-cv-00202-LJO-SKO. However, “[h]abeas petitions that
are filed second-in-time are not necessarily second or
successive.” Clayton v. Biter, 868 F.3d 840,
843 (9th Cir. 2017). For example, “a habeas petition
that challenges a new or intervening judgment is not a second
or successive petition even where the intervening judgment
left in place an earlier challenged conviction and
sentence.” Id. at 843-44 (citing Wentzell
v. Neven, 674 F.3d 1124 (9th Cir. 2012)).
Petitioner appears to base his claims on California Senate
Bill No. 1437, Stats. 2018, ch. 1015, which enacted changes
effective January 1, 2019. (ECF No. 1 at 30). However, as
Petitioner's state court petitions are still pending, the
instant federal petition cannot be construed as challenging
an order resolving a resentencing petition or a new or
intervening judgment. See Davis v. Sullivan, No.
17-73465, 2018 U.S. App. LEXIS 19388, at *1 (9th Cir. July
13, 2018) (holding petition was successive where petitioner
was “not challenging an order resolving a resentencing
petition but instead [was] seeking to challenge his original
judgment of conviction”).
the Court finds that the instant petition is “second or
successive” under § 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 this petition. As Petitioner
has not obtained prior leave from the Ninth Circuit to file
this successive petition, this Court ...