United States District Court, E.D. California
FINDINGS AND RECOMMENDATIONS TO DISMISS WRIT OF
HABEAS CORPUS AS SUCCESSIVE ECF No. 1 OBJECTIONS DUE IN
Clarence Venson Knight, a state prisoner without counsel,
seeks a writ of habeas corpus under 28 U.S.C. § 2254.
ECF No. 1. This matter is before the court for preliminary
review under Rule 4 of the Rules Governing Section 2254
Cases. Because petitioner has not obtained authorization from
the Ninth Circuit to pursue a successive petition, this court
lacks jurisdiction over the case. I recommend that the court
dismiss the petition for lack of jurisdiction.
was convicted of first-degree murder and robbery-with a gun
enhancement- in the San Diego County Superior Court on July
24, 1979. ECF No. 1 at 1. Since that time, petitioner has
sought review of his conviction multiple times at both the
state and federal levels, and has filed seven other federal
petitions for writs of habeas corpus. All were denied, dismissed,
or are still pending. Petitioner filed the instant petition
for habeas review on December 13, 2018, claiming that he was
subject to unlawful restraint in prison and that the
California Department of Corrections and Rehabilitation
violated his rights under the U.S. Constitution in
miscalculating (1) his credits for time earned and (2) his
release date. ECF No. 1 at 5-7, 18-19.
Rule 4, a district court must dismiss a habeas petition if it
“plainly appears” that the petitioner is not
entitled to relief. “Under AEDPA's second or
successive petition provisions, any claim that has been
adjudicated in a previous petition must be dismissed.”
Hall v. Haws, 861 F.3d 977, 984 (9th Cir. 2017)
(citing 28 U.S.C. § 2244(b)(1)). “Likewise, a
claim presented in a second or successive petition that was
not presented in a prior application ‘shall be
dismissed unless' certain criteria are met.”
Gonzalez v. Sherman, 873 F.3d 763, 767 (9th Cir.
2017). “The standard for distinguishing repetitious
claims from new ones is the substantial similarity rule used
to determine whether a claim has been exhausted in state
court.” Gimenez v. Ochoa, 821 F.3d 1136, 1141
(9th Cir. 2016) (internal quotations omitted). A “claim
‘is successive if the basic thrust or gravamen of the
legal claim is the same, regardless of whether the basic
claim is supported by new and different legal arguments
… [or] proved by different factual
allegations.'” Gulbrandson v. Ryan, 738
F.3d 976, 997 (9th Cir. 2013) (as amended) (quoting
Babbitt v. Woodford, 177 F.3d 744, 746 (9th Cir.
1999)) (alterations in original).
federal court will not consider a successive habeas corpus
petition unless the petitioner shows one of the following:
Either, first, that his claim relies on a new rule of
constitutional law, made retroactive by the Supreme Court,
that was previously unavailable; or, second, that the factual
predicate for the claim could not have been discovered
previously through the exercise of due diligence. The facts
underlying the claim, if proven and viewed in light of the
evidence as a whole, must be sufficient to establish by clear
and convincing evidence that, but for constitutional error,
no reasonable factfinder would have found the petitioner
guilty of the underlying offense. See 28 U.S.C.
§ 2244(b)(2)(A)-(B). A district court may not decide
whether a petition meets these requirements; the petitioner
must obtain the authorization from the appropriate court of
appeals before filing the petition in the district court.
See 28 U.S.C. § 2244(b)(3)(A); Burton v.
Stewart, 549 U.S. 147, 157 (2007); Magwood v.
Patterson, 561 U.S. 320, 330-31 (2010). The
authorization from the appropriate court of appeals is a
jurisdictional requirement. See Burton, 549 U.S. at
petitioner has not presented authorization from the U.S.
Court of Appeals for the Ninth Circuit to file a successive
petition under 28 U.S.C. § 2244(b)(3)(A). Even if
petitioner were to seek Ninth Circuit authorization, denial
would be almost certain because his claims either are similar
to those he has made in previous habeas petitions or are
unsuitable for habeas petitions. Petitioner has not presented
any proof of new evidence in support of his petition, has not
identified any new U.S. Supreme Court case law that supports
his positions, and has not shown that no reasonable
factfinder would have found him guilty, but for the alleged
constitutional error. I recommend dismissal for lack of
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 my conclusion debatable or
conclude that petitioner should proceed further. Thus, the
court should decline to issue a certificate of appealability.
recommend that the petition be dismissed for lack of
jurisdiction and that the court decline to issue a
certificate of appealability. I submit the findings and
recommendations to the district judge who will be assigned to
the case under 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 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 Findings and Recommendations.”
The assigned district judge will then review the findings and
recommendations under 28 U.S.C. § 636(b)(1)(C).