(HC) Gholar v. Yates, No. 1:2010cv00036 - Document 12 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS Regarding Dismissal of Successive re 1 Petition for Writ of Habeas Corpus signed by Magistrate Judge Gary S. Austin on 3/8/2010. Referred to Judge Anthony W. Ishii; Objections to F&R due by 4/12/2010. (Sondheim, M)

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(HC) Gholar v. Yates Doc. 12 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 12 13 14 15 16 17 JOHN GHOLAR, ) ) Petitioner, ) ) v. ) ) ) JAMES YATES, Warden, ) ) Respondent. ) ____________________________________) 1:10-CV-00036 AWI GSA HC FINDINGS AND RECOMMENDATION REGARDING DISMISSAL OF SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2244(b) 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. 20 In the petition filed on January 7, 2010, Petitioner challenges his 2001 conviction in Kern 21 County Superior Court for committing a lewd act on a child under the age of fourteen. A review of 22 the Court’s dockets and files shows Petitioner has previously sought habeas relief with respect to this 23 conviction.1 In case no. 1:03-CV-5371 AWI DLB HC, the petition was denied on the merits. In case 24 no. 1:08-CV-00569 OWW GSA HC, the petition was dismissed as successive. 25 26 1 27 28 The Court takes judicial notice of the dockets in case nos. 1:03-CV-5371 AW I DLB and 1:08-CV-00569 OW W GSA HC. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9 th Cir.1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D.Cal.1978), aff’d, 645 F.2d 699, (9 th Cir.) (Judicial notice may be taken of court records). U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 2 DISCUSSION A federal court must dismiss a second or successive petition that raises the same grounds as a 3 prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive petition 4 raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, 5 constitutional right or 2) the factual basis of the claim was not previously discoverable through due 6 diligence, and these new facts establish by clear and convincing evidence that but for the 7 constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying 8 offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a 9 second or successive petition meets these requirements, which allow a petitioner to file a second or 10 successive petition. 11 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by this 12 section is filed in the district court, the applicant shall move in the appropriate court of appeals for an 13 order authorizing the district court to consider the application." In other words, Petitioner must 14 obtain leave from the Ninth Circuit before he can file a second or successive petition in district court. 15 See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or 16 successive petition unless the Court of Appeals has given Petitioner leave to file the petition because 17 a district court lacks subject-matter jurisdiction over a second or successive petition. Pratt v. United 18 States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), 19 cert. denied, 117 S.Ct. 794 (1997); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). 20 Because the current petition was filed after April 24, 1996, the provisions of the 21 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current 22 petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that he has 23 obtained prior leave from the Ninth Circuit to file his successive petition attacking the conviction. 24 That being so, this Court has no jurisdiction to consider Petitioner's renewed application for relief 25 from that conviction under Section 2254 and must dismiss the petition. See Greenawalt, 105 F.3d at 26 1277; Nunez, 96 F.3d at 991. If Petitioner desires to proceed in bringing this petition for writ of 27 habeas corpus, he must file for leave to do so with the Ninth Circuit. See 28 U.S.C. § 2244 (b)(3). 28 U .S. D istrict C ourt E. D . C alifornia 2 1 RECOMMENDATION 2 3 Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED as successive. 4 This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, United 5 States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 6 of the Local Rules of Practice for the United States District Court, Eastern District of California. 7 Within thirty (30) days after being served with a copy, Petitioner may file written objections with the 8 court and serve a copy on all parties. Such a document should be captioned “Objections to 9 Magistrate Judge’s Findings and Recommendations.” The Court will then review the Magistrate 10 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file 11 objections within the specified time may waive the right to appeal the District Court’s order. 12 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 13 14 IT IS SO ORDERED. 15 Dated: 6i0kij March 8, 2010 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia 3

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