(HC) Wright v. The State of California, No. 2:2015cv02260 - Document 5 (E.D. Cal. 2016)

Court Description: ORDER, FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/5/2016 ORDERING the Clerk to randomly assign a US District Judge to this action. IT IS RECOMMENDED that this action be dismissed for lack of jurisdiction. Assigned and referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)

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(HC) Wright v. The State of California Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DOMINIC VA’SHON WRIGHT, 12 13 14 15 No. 2:15-cv-2260-EFB P Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS THE STATE OF CALIFORNIA, Respondent. 16 17 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 18 28 U.S.C. § 2254. The court has reviewed the petition as required by Rule 4 of the Rules 19 Governing Section 2254 Proceedings, and finds that the petition is second or successive and must 20 therefore be dismissed. 21 A petition is second or successive if it makes “claims contesting the same custody 22 imposed by the same judgment of a state court” that the petitioner previously challenged, and on 23 which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); 24 see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive 25 petition in a district court, a petitioner must obtain from the appellate court “an order authorizing 26 the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Without an order from 27 the appellate court, the district court is without jurisdiction to consider a second or successive 28 petition. See Burton, 549 U.S. 147. Dockets.Justia.com 1 In the present action, petitioner challenges a 1998 judgment of conviction entered in the 2 Sacramento County Superior Court in case number 96F07844. ECF No. 1 at 1.1 The court has 3 examined its records, and finds that petitioner challenged the same judgment of conviction in an 4 earlier action. Specifically, in Wright v. Runnels, No. 2:02-1656-LKK-EFB (E.D. Cal.), the court 5 considered petitioner’s challenge to the same judgment of conviction.2 See Wright, ECF No. 15 6 (magistrate judge’s November, 30, 2005 findings and recommendations to deny petition on the 7 merits); ECF No. 19 (district judge’s January 30, 2006 order adopting findings and 8 recommendations and denying petitioner’s application for a writ of habeas corpus). Since 9 petitioner challenges the same judgment now that he previously challenged and which was 10 11 adjudicated on the merits, the petition now pending is second or successive. Petitioner offers no evidence that the appellate court has authorized this court to consider 12 a second or successive petition. Since petitioner has not demonstrated that the appellate court has 13 authorized this court to consider a second or successive petition, this action must be dismissed for 14 lack of jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 15 Cir. 2001) (per curiam). 16 17 18 19 Accordingly, it is hereby ORDERED that the Clerk of the Court randomly assign a United States District Judge to this action. Further, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of jurisdiction. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 25 shall be served and filed within fourteen days after service of the objections. Failure to file 26 27 28 1 For ease of reference, all references to page numbers in the petition are to those assigned via the court’s electronic filing system. 2 Petitioner references this earlier action in the instant petition. ECF No. 1 at 9. 2 1 objections within the specified time may waive the right to appeal the District Court’s order. 2 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 3 1991). In his objections petitioner may address whether a certificate of appealability should issue 4 in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 5 Section 2254 Cases in the United States District Courts (the district court must issue or deny a 6 certificate of appealability when it enters a final order adverse to the applicant). 7 DATED: January 5, 2016. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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