(HC) Olivarez v. Warden, No. 1:2016cv00644 - Document 18 (E.D. Cal. 2016)

Court Description: FINDINGS and RECOMMENDATIONS to Grant Respondent's 11 Motion to Dismiss and to Dismiss Petition for Writ of Habeas Corpus signed by Magistrate Judge Stanley A. Boone on 11/07/2016. Referred to Judge Drozd; Objections to F&R due by 12/12/2016. (Flores, E)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 HARRY JAMES OLIVAREZ, Petitioner, 12 13 14 Case No. 1:16-cv-00644-DAD-SAB-HC FINDINGS AND RECOMMENDATION TO GRANT RESPONDENT’S MOTION TO DISMISS AND TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS v. WARDEN, Mule Creek State Prison, (ECF No. 11) 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 I. 20 BACKGROUND 21 On March 18, 2016, Petitioner filed the instant petition for writ of habeas corpus in the 22 Sacramento Division of the United States District Court for the Eastern District of California. 23 (ECF No. 1). On May 9, 2016, the matter was transferred to the Fresno Division. (ECF No. 5). In 24 the instant petition, Petitioner alleges that he was denied a Three Strikes Reform Act sentence 25 reduction under California Penal Code section 1170.126, in violation of due process. On July 11, 26 2016, Respondent filed a motion to dismiss the petition because it is an unauthorized successive 27 petition, or alternatively, because it fails to raise a federal question. (ECF No. 11). Petitioner has 28 filed an opposition. (ECF No. 17). 1 1 II. 2 DISCUSSION A federal court must dismiss a second or successive petition that raises the same grounds 3 4 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 5 petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, 6 retroactive, constitutional right or (2) the factual basis of the claim was not previously 7 discoverable through due diligence, and these new facts establish by clear and convincing 8 evidence that but for the constitutional error, no reasonable factfinder would have found the 9 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 10 11 meets these requirements. Section 2244(b)(3)(A) provides: “Before a second or successive 12 application permitted by this section is filed in the district court, the applicant shall move in the 13 appropriate court of appeals for an order authorizing the district court to consider the 14 application.” In other words, Petitioner must obtain leave from the Ninth Circuit before he can 15 file a second or successive petition in the district court. See Felker v. Turpin, 518 U.S. 651, 656– 16 657 (1996). This Court must dismiss any second or successive petition unless the Court of 17 Appeals has given Petitioner leave to file the petition because a district court lacks subject-matter 18 jurisdiction over a second or successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). Here, Petitioner challenges the state court’s denial of his petition for a Three Strikes 19 20 Reform Act sentence reduction. Petitioner previously filed a federal habeas petition in this Court 21 challenging the same denial of his Three Strikes Reform Act petition in Olivarez v. Warden, No. 22 1:14-cv-01354-LJO-MJS.1 On March 26, 2015, this previous petition was dismissed for failure 23 to state a federally cognizable claim. Order, Olivarez, No. 1:14-cv-01354-LJO-MJS (E.D. Cal. 24 Mar. 26, 2015), ECF No. 24. Petitioner did not appeal the dismissal. The Court finds that the instant petition is “second or successive” under § 2244(b). See 25 26 McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (“A habeas petition is second or 27 1 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 28 (9th Cir. 1980). 2 1 successive only if it raises claims that were or could have been adjudicated on the merits. A 2 disposition is ‘on the merits’ if the district court either considers and rejects the claims or 3 determines that the underlying claim will not be considered by a federal court.”). Petitioner 4 makes no showing that he has obtained prior leave from the Ninth Circuit to file this petition. 5 Accordingly, this Court has no jurisdiction to consider Petitioner’s renewed application for relief 6 under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. at 157. 7 III. 8 RECOMMENDATION Accordingly, IT IS HEREBY RECOMMENDED that Respondent’s motion to dismiss be 9 10 GRANTED and the petition for writ of habeas corpus be DISMISSED as successive. This Findings and Recommendation is submitted to the assigned United States District 11 12 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 13 Rules of Practice for the United States District Court, Eastern District of California. Within 14 THIRTY (30) days after service of the Findings and Recommendation, any party may file 15 written objections with the court and serve a copy on all parties. Such a document should be 16 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the 17 objections shall be served and filed within fourteen (14) days after service of the objections. The 18 assigned District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 19 636(b)(1)(C). The parties are advised that failure to file objections within the specified time may 20 waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 834, 839 21 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 IT IS SO ORDERED. 24 Dated: November 7, 2016 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3

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