(HC) Ward v. Biter, No. 2:2015cv00207 - Document 27 (E.D. Cal. 2016)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 1/28/2016 RECOMMENDING that respondent's 11 motion to dismiss be granted and that this action be dismissed. Referred to Judge Garland E. Burrell, Jr.; Objections due within 14 days. (Yin, K)
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(HC) Ward v. Biter Doc. 27 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JEFFREY DEANE WARD, 12 Petitioner, 13 14 No. 2:15-CV-0207-GEB-CMK-P vs. FINDINGS AND RECOMMENDATIONS M.D. BITER, 15 Respondent. 16 / 17 Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s motion to 19 dismiss (Doc. 11). 20 Petitioner is serving an indeterminate life term without the possibility of parole 21 following a conviction for first degree murder. Petitioner’s conviction and sentence were 22 affirmed on direct appeal and the California Supreme Court denied review. Petitioner then filed 23 the following post-conviction actions in state court: 24 First Petition 25 26 Sacramento County Superior Court Filed April 10, 2011 Denied May 13, 2011 /// 1 Dockets.Justia.com 1 Second Petition California Supreme Court Filed February 21, 2012 Denied May 23, 2012 Third Petition California Court of Appeal Filed July 6, 2013 Denied July 18, 2013 Fourth Petition California Supreme Court Filed August 20, 2014 Denied October 29, 2014 2 3 4 5 6 7 Petitioner also filed a prior federal habeas corpus petition in this court challenging the same 8 conviction and sentence. See Ward v. Bitter, 2:12-CV-0047-KJS. That petition was denied on 9 the merits on March 21, 2013, and reconsideration was denied on April 23, 2013. Thereafter, the 10 Ninth Circuit Court of Appeals denied petitioner’s request for a certificate of appealability and 11 the Supreme Court denied certiorari. 12 In his motion to dismiss, respondent argues, among other things, that the instant 13 petition must be dismissed as a second or successive petition filed without first obtaining 14 permission to do so from the Ninth Circuit. The court agrees. Under 28 U.S.C. § 2244(b)(1), 15 “[a] claim presented in a second or successive habeas corpus application . . . that was presented 16 in a prior application shall be dismissed.” Under § 2244(b)(2), “[a] claim presented in a second 17 or successive habeas corpus application . . . that was not presented in a prior application shall be 18 dismissed. . . .” unless one of two circumstances exist. Either the newly raised claim must rely 19 on a new rule of constitutional law, or the factual predicate of the new claim could not have been 20 discovered earlier through the exercise of due diligence and the new claim, if proven, establishes 21 actual innocence. See id. Before a second or successive petition can be filed in the district court, 22 however, the petitioner must first obtain leave of the Court of Appeals. See 28 U.S.C. § 23 2244(b)(3). In the absence of proper authorization from the Court of Appeals, the district court 24 lacks jurisdiction to consider a second or successive petition and must dismiss it. See Cooper v. 25 Calderon, 274 F.3d 1270 (9th Cir. 2001) (per curiam). 26 /// 2 1 In the instant petition, petitioner claims that his appellate counsel was ineffective. 2 This claim was not raised in the prior federal petition adjudicated in 2013 and petitioner has not 3 obtained leave from the Ninth Circuit to present it now in the context of a second or successive 4 federal petition. While petitioner argues in his opposition to respondent’s motion to dismiss that 5 this second federal petition should be allowed, that is a determination for the Ninth Circuit not 6 this court. 7 8 Based on the foregoing, the undersigned recommends that respondent’s motion to dismiss (Doc. 11) be granted and that this action be dismissed. 9 These findings and recommendations are submitted to the United States District 10 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 days 11 after being served with these findings and recommendations, any party may file written 12 objections with the court. Responses to objections shall be filed within 14 days after service of 13 objections. Failure to file objections within the specified time may waive the right to appeal. 14 See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 17 18 DATED: January 28, 2016 ______________________________________ CRAIG M. KELLISON UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 3
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