(HC) Foster v. Virga, No. 1:2010cv01394 - Document 5 (E.D. Cal. 2010)
Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sandra M. Snyder on 8/10/2010 recommending that 1 Petition for Writ of Habeas Corpus filed by Ricky Tyrone Foster be DISMISSED, without prejudice, as a successive petition. Objections to F&R due by 9/13/2010. (Lundstrom, T)
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(HC) Foster v. Virga Doc. 5 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 RICKY TYRONE FOSTER, 10 1:10-cv-01394-LJO-SMS (HC) Petitioner, 11 FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS v. 12 [Doc. 1] TIM VIRGA, Warden 13 Respondent. 14 / 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. § 2254. 17 Petitioner filed the instant petition for writ of habeas corpus on August 4, 2010. 18 Petitioner is challenging a conviction arising out of the Fresno County Superior Court for 19 carjacking, assault with a firearm, kidnapping to commit carjacking, and kidnapping to commit 20 robbery. 21 As Petitioner acknowledges he has previously filed a petition for writ of habeas corpus in 22 this Court, in case number 1:99-cv-5748 OWW DLB HC, Foster v. Garcia, which was denied on 23 the merits and judgment was entered in favor of Respondent on January 19, 2007. Petitioner 24 filed a notice of appeal on February 5, 2007, and the Ninth Circuit Court of Appeals denied a 25 certificate of appealability on September 13, 2007. 26 /// 27 /// 28 1 Dockets.Justia.com 1 DISCUSSION 2 Because the current petition was filed after April 24, 1996, the provisions of the 3 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current 4 petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). A federal court must dismiss a second or 5 successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The 6 court must also dismiss a second or successive petition raising a new ground unless the petitioner 7 can show that 1) the claim rests on a new, retroactive, constitutional right or 2) the factual basis 8 of the claim was not previously discoverable through due diligence, and these new facts establish 9 by clear and convincing evidence that but for the constitutional error, no reasonable factfinder 10 would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). 11 However, it is not the district court that decides whether a second or successive petition meets 12 these requirements, which allow a petitioner to file a second or successive petition. 13 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by 14 this section is filed in the district court, the applicant shall move in the appropriate court of 15 appeals for an order authorizing the district court to consider the application." In other words, 16 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 17 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must 18 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave 19 to file the petition because a district court lacks subject-matter jurisdiction over a second or 20 successive petition. Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. 21 Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v. 22 United States, 96 F.3d 990, 991 (7th Cir. 1996). 23 A second or successive petition for habeas corpus is not considered “successive” if the 24 initial habeas petition was dismissed for a technical or procedural reason versus on the merits. 25 See Slack v. McDaniel, 529 U.S. 473, 485-87 (2000) (holding that a second habeas petition is not 26 successive if the initial habeas petition was dismissed for failure to exhaust); Stewart v. 27 Martinez-Villareal, 523 U.S. 637, 643-45 (1998) (a second habeas petition is not successive if the 28 claim raised in the first petition was dismissed by the district court as premature.) 2 1 The prior petition in 1:09-cv-05748 OWW DLB HC was denied on the merits. Although 2 a dismissal based on the statute of limitations does not include an examination of the merits of 3 the petition, it nonetheless operates and is equivalent to a final judgment on the merits. See e.g. 4 Ellingson v. Burlington Northern Inc., 653 F.2d 1327, 1330 n.3 (9th Cir. 1981) (“[a] judgment 5 based on the statute of limitations is ‘on the merits’, citing Mathis v. Laird, 457 F.2d 926, 927 5th 6 Cir. 1972), cert. denied, 409 U.S. 871 (1972)); In re Marino, 181 F.3d 1142, 1144 (9th Cir. 1999) 7 (explaining that “for res judicata purposes a dismissal on statute of limitations grounds can be 8 treated as a dismissal on the merits.”) A dismissal based on untimeliness under the statute of 9 limitations bars further review of the action. Therefore, because the prior petition was 10 adjudicated “on the merits”, the instant petition is a “second or successive petition” under § 11 2244(b). 12 Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to 13 file his successive petition attacking the conviction. That being so, this Court has no jurisdiction 14 to consider Petitioner's renewed application for relief from that conviction under § 2254 and must 15 dismiss the petition. See Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. If Petitioner 16 desires to proceed in bringing this petition for writ of habeas corpus, he must file for leave to do 17 so with the Ninth Circuit Court of Appeals. See 28 U.S.C. § 2244 (b)(3). 18 19 20 RECOMMENDATION Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED, without prejudice, as a successive petition. 21 These Findings and Recommendations are submitted to the assigned United States 22 District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 23 of the Local Rules of Practice for the United States District Court, Eastern District of California. 24 Within thirty (30) days after being served with a copy, any party may file written objections with 25 the court and serve a copy on all parties. Such a document should be captioned “Objections to 26 Magistrate Judge’s Findings and Recommendations.” Replies to the objections shall be served 27 and filed within ten (10) court days (plus three days if served by mail) after service of the 28 objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 3 1 636 (b)(1)(C). The parties are advised that failure to file objections within the specified time 2 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 3 Cir. 1991). 4 5 6 IT IS SO ORDERED. 7 Dated: icido3 August 10, 2010 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4
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