United States District Court, E.D. California
FINDINGS AND RECOMMENDATION TO DISMISS SUCCESSIVE
PETITION FOR WRIT OF HABEAS CORPUS ORDER DIRECTING CLERK OF
COURT TO ASSIGN DISTRICT JUDGE
K. OBERTO UNITED STATES MAGISTRATE JUDGE
December 30, 2019, Petitioner filed the instant petition for
writ of habeas corpus in this Court. Because the petition is
successive, the Court will recommend it be
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).
case, Petitioner challenges his 2007 conviction in the Tulare
County Superior Court for carjacking and related offenses. He
claims that his sentence was illegally enhanced, and that the
gang expert relied on hearsay in violation of the
Confrontation Clause of the Sixth Amendment. Petitioner
previously sought federal habeas relief in this Court with
respect to the same conviction. See Pineda v.
Harrington, Case No. 1:10-cv-00354-OWW-DLB. In that
action, Petitioner claimed: 1) The identification procedure
was impermissibly suggestive; 2) The carjacking prosecution
violated the double jeopardy clause; 3) Petitioner received
ineffective assistance of counsel; and 4) There was
insufficient evidence to support the criminal street gang
enhancement. Id. The petition was denied on the
merits on October 19, 2010. Id.
Court finds that the instant petition is “second or
successive” under 28 U.S.C. § 2244(b). 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.
the Clerk of Court is DIRECTED to assign a District Judge to
foregoing reasons, the Court HEREBY 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. section 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 ...