(HC) Rowe v. Biter, No. 1:2016cv01064 - Document 5 (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 AND DIRECTING CLERK OF THE COURT TO ASSIGN DISTRICT JUDGE TO CASE signed by Magistrate Judge Jennifer L. Thurston on 7/27/2016. Referred to Judge Anthony W. Ishii. (Lundstrom, T)
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(HC) Rowe v. Biter Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THEODORE ROWE, Petitioner, 12 v. 13 14 BITER, Respondent. 15 16 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-01064-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 Theodore Rowe challenges his 1997 conviction and the resulting, “three strikes” sentence of 18 19 incarceration for thirty-five years to life in prison. However, Mr. Rowe has challenged this same 20 conviction and sentence in earlier cases. Because this petition is successive, it should be 21 DISMISSED. 22 I. 23 PROCEDURAL HISTORY In the course of conducting a preliminary screening of the petition, the Court’s realized that 24 Petitioner has previously filed several federal habeas petitions challenging this same conviction. The 25 Court denied his previous case, case number 1:01-cv-5245-JKS, on the merits on April 14, 2004, and 26 entered judgment the following day. (Docs. 14 & 15 for case no. 1:01-cv-5425-JKS). The Court’s 27 records indicate that, following Petitioner’s filing of a notice of appeal of the order of denial, the 28 United States Court of Appeals for the Ninth Circuit, on July 23, 2007, affirmed the district court’s 1 Dockets.Justia.com 1 denial of the petition. (Doc. 26 for case number 1:01-cv-5425-JKS). On November 12, 2009, Petitioner filed a successive petition challenging the same conviction 2 3 in this Court in case number 1:09-cv-02051-JLT. The Court dismissed this petition as successive on 4 April 28, 2010. Then again, on September 10, 2012, Petitioner filed yet another successive petition in 5 case number 1:12-cv-1477-BAM. Once again, the Court dismissed the petition as successive on 6 October 16, 2012. Petitioner freely admits that this current petition is successive, writing that “… [P]etitioner 7 8 comes now to support the petition attached, and to sincerely apologize to the courts for my continued 9 attempts at habeas corpus. I was not guilty in 1997, nor am I today. So I refuse to stop trying to 10 obtain my freedom.” (Doc. 1, p. 7). 11 II. DISCUSSION 12 A. Preliminary Review of Petition. 13 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 14 if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 15 not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The 16 Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas 17 corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after 18 an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). 19 B. Successive Petitions. [§ 2254] 20 A federal court must dismiss a second or successive petition that raises the same grounds as a 21 prior petition. 28 U.S.C. § 2244(b)(1). The Court must also dismiss a second or successive petition 22 raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, 23 constitutional right or 2) the factual basis of the claim was not previously discoverable through due 24 diligence, and these new facts establish by clear and convincing evidence that but for the constitutional 25 error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. 28 26 U.S.C. § 2244(b)(2)(A)-(B). 27 28 However, it is not the district court that decides whether a second or successive petition meets these requirements that allow a petitioner to file a second or successive petition, but rather the Ninth 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Circuit. Section 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." (Emphasis supplied). 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, and will 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. Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). 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. Murphy, 521 U.S. 320, 327 (1997). It is undisputed that the petition is successive. Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file this successive petition attacking his conviction. That being so, this Court has no jurisdiction to consider Petitioner's renewed application for relief from that conviction under § 2254 and must dismiss the petition. See Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. If Petitioner desires to proceed in bringing this petition for writ of habeas corpus, he must first file for leave to do so with the Ninth Circuit. See 28 U.S.C. § 2244 (b)(3).[ 21 22 23 24 25 26 27 28 ORDER For the foregoing reasons, the Clerk of the Court is DIRECTED to assign a United States District judge to this case. RECOMMENDATION Accordingly, the Court RECOMMENDS the Petition for Writ of Habeas Corpus be DISMISSED as a second and successive petition. This Findings and Recommendation is submitted to the United States District Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 3 1 Rules of Practice for the United States District Court, Eastern District of California. Within 21 days 2 after being served with a copy of this Findings and Recommendation, any party may file written 3 objections with the Court and serve a copy on all parties. Such a document should be captioned 4 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be 5 served and filed within 10 days (plus three days if served by mail) after service of the Objections. The 6 Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The 7 parties are advised that failure to file objections within the specified time may waive the right to 8 appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 9 10 11 12 IT IS SO ORDERED. Dated: July 27, 2016 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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