(HC) McKinstry v. Davis, No. 1:2015cv01912 - Document 4 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Writ of Habeas Corpus as Second and Successive; ORDER Directing that Objections be Filed Within Twenty-One Days; ORDER Directing Clerk of the Court to Assign a District Judge to Case, signed by Magistrate Judge Jennifer L. Thurston on 1/6/16. Case is assigned to District Judge Dale A. Drozd and Magistrate Judge Jennifer L. Thurston. The New Case Number is: 1:15-cv-01912-DAD-JLT. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 SCOTT McKINSTRY, Petitioner, 12 v. 13 14 RON DAVIS, Warden, Respondent. 15 16 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-01912-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS SECOND AND SUCCESSIVE ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS ORDER DIRECTING CLERK OF THE COURT TO ASSIGN DISTRICT JUDGE TO CASE 17 18 In this action, Petitioner challenges his 2008 conviction for second degree murder. The Court 19 notes that Petitioner has filed a prior federal habeas petition challenging this very same conviction. 20 The Court’s docket and Petitioner’s candid admission in his petition (Doc. 1, p. 11), 21 demonstrates that Petitioner filed case number 1:13-cv-00088-AWI-MSJ on January 11, 2013, which 22 challenges the same 2008 second degree murder conviction. After considering the merits of the 23 petition, the Court denied it with prejudice on January 28, 2015. 24 I. DISCUSSION 25 A. Preliminary Review of Petition. 26 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 27 if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 28 not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The 1 1 Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas 2 corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after 3 an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). 4 B. Successive Petitions. [§ 2254] 5 A federal court must dismiss a second or successive petition that raises the same grounds as a 6 prior petition. 28 U.S.C. § 2244(b)(1). The Court must also dismiss a second or successive petition 7 raising, as here, a new ground, unless the petitioner can show that 1) the claim rests on a new, 8 retroactive, constitutional right or 2) the factual basis of the claim was not previously discoverable 9 through due diligence, and these new facts establish by clear and convincing evidence that but for the 10 constitutional error, no reasonable fact-finder would have found the applicant guilty of the underlying 11 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 12 13 meets these requirements that allow a petitioner to file a second or successive petition, but rather 14 the Ninth Circuit. Section 2244 (b)(3)(A) provides: "Before a second or successive application 15 permitted by this section is filed in the district court, the applicant shall move in the appropriate court 16 of appeals for an order authorizing the district court to consider the application." In other words, 17 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive petition in 18 district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any 19 second or successive petition unless the Court of Appeals has given Petitioner leave to file the 20 petition because a district court lacks subject-matter jurisdiction over a second or successive 21 petition. Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 22 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v. United States, 96 F.3d 990, 991 (7th 23 Cir. 1996). Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file this 24 25 successive petition attacking his 2008 conviction. Thus, the Court has no jurisdiction to consider 26 Petitioner's renewed application for relief from that conviction under § 2254 and must dismiss the 27 petition. See Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. 28 /// 2 1 ORDER 2 For the foregoing reasons, the Clerk of the Court is DIRECTED to assign a United States 3 District judge to this case. 4 RECOMMENDATION 5 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 6 7 DISMISSED as a second and successive petition. This Findings and Recommendation is submitted to the United States District Court Judge 8 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 9 Rules of Practice for the United States District Court, Eastern District of California. Within 21 days 10 after being served with a copy of this Findings and Recommendation, any party may file written 11 objections with the Court and serve a copy on all parties. Such a document should be captioned 12 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be 13 served and filed within 10 days (plus three days if served by mail) after service of the Objections. The 14 Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties 15 are advised that failure to file objections within the specified time may waive the right to appeal the 16 Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 18 19 20 IT IS SO ORDERED. Dated: January 6, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 3

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