(HC) Garza v. Grounds, No. 1:2012cv00827 - Document 7 (E.D. Cal. 2012)

Court Description: FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be DISMISSED as a second and successive ; ORDER DIRECTING that Objections be filed within (20) Twenty Days; ORDER DIRECTING Clerk of the Court to Assign Case to a District Judge, signed by Magistrate Judge Jennifer L. Thurston on 05/23/2012. Referred to Judge O'Neill; Objections to F&R due by 6/15/2012 (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ) ) ) ) ) ) ) ) ) ) ) HECTOR GARZA, 11 Plaintiff, 12 v. 13 R. GROUNDS, 14 Defendant. 15 16 Case No.: 1:12-cv-00827-JLT (HC) FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS SECOND AND SUCCESSIVE ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY DAYS ORDER DIRECTING CLERK OF THE COURT TO ASSIGN CASE TO A DISTRICT JUDGE 17 18 19 Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 PROCEDURAL HISTORY 21 The instant petition was filed on May 14, 2012, in the Sacramento Division of this Court. 22 (Doc. 1). On May 21, 2012, the case was transferred to the Fresno Division. (Doc. 4). In the course 23 of conducting a preliminary screening of the petition, it has come to the Court’s attention that 24 Petitioner has previously filed one or more federal habeas petitions challenging this same conviction. 25 A review of the Court’s own docket reflects that Petitioner has previously filed the following 26 petitions in this Court, all challenging Petitioner’s 1998 Fresno County Superior Court conviction for 27 possession of cocaine base, and his subsequent sentence of twenty-five-years-to-life: (1) case no. 28 1 1 1:01-cv-05157-OWW-SMS (denied on the merits on April 18, 2003); (2) case no. 1:01-cv-06220- 2 OWW-HGB (dismissed on February 21, 2002 as duplicative of case no. 1:01-cv-05157-OWW-SMS); 3 (3) case no. 1:05-cv-01101-AWI-DLB (dismissed on July 7, 2006 on Petitioner’s own motion to 4 withdraw); (4) 1:07-cv--00793-AWI-TAG (dismissed on March 17, 2008 for violation of the one-year 5 statute of limitations in 28 U.S.C. § 2244(d)(1)); and (5)1:11-cv-01147-AWI-MJS (dismissed on 6 December 23, 2011 as successive). DISCUSSION 7 8 9 A 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 10 raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, 11 constitutional right or 2) the factual basis of the claim was not previously discoverable through due 12 diligence, and these new facts establish by clear and convincing evidence that but for the constitutional 13 error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. 28 14 U.S.C. § 2244(b)(2)(A)-(B). 15 However, it is not the district court that decides whether a second or successive petition meets 16 these requirements that allow a petitioner to file a second or successive petition, but rather the Ninth 17 Circuit. Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by this 18 section is filed in the district court, the applicant shall move in the appropriate court of appeals for an 19 order authorizing the district court to consider the application." In other words, Petitioner must obtain 20 leave from the Ninth Circuit before he can file a second or successive petition in district court. See 21 Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or successive 22 petition unless the Court of Appeals has given Petitioner leave to file the petition because a district 23 court lacks subject-matter jurisdiction over a second or successive petition. Pratt v. United States, 129 24 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 25 117 S.Ct. 794 (1997); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). 26 27 28 Because the current petition was filed after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current petition. Lindh v. 2 1 Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that he has obtained prior leave from 2 the Ninth Circuit to file this successive petition attacking his conviction. That being so, this Court has 3 no jurisdiction to consider Petitioner's renewed application for relief from that conviction under § 4 2254 and must dismiss the petition. See Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. If 5 Petitioner desires to proceed in bringing this petition for writ of habeas corpus, he must first file for 6 leave to do so with the Ninth Circuit. See 28 U.S.C. § 2244 (b)(3). 7 ORDER 8 For the foregoing reasons, the Clerk of the Court is DIRECTED to assign a United States 9 District judge to this case. 10 RECOMMENDATION 11 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 12 DISMISSED as a second and successive petition. This Findings and Recommendation is submitted to the United States District Court Judge 13 14 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 15 Rules of Practice for the United States District Court, Eastern District of California. Within twenty 16 (20) days after being served with a copy of this Findings and Recommendation, any party may file 17 written objections with the Court and serve a copy on all parties. Such a document should be 18 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 19 Objections shall be served and filed within ten (10) court days (plus three days if served by mail) after 20 service of the Objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 21 U.S.C. § 636 (b)(1)(C). 22 /// 23 /// 24 /// 25 /// 26 /// 27 28 3 The parties are advised that failure to file objections within the specified time may waive the 1 2 right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 9j7khijed 5 IT IS SO ORDERED. 6 Dated: 7 May 23, 2012 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE DEAC_Signature-END: 8 9j7khijed 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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