-SMS (HC) Hissong v. State of California, No. 1:2011cv00344 - Document 7 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sandra M. Snyder on 3/15/2011 recommending that 1 Petition for Writ of Habeas Corpus be DISMISSED without prejudice. Referred to Judge Anthony W. Ishii; Objections to F&R due by 4/18/2011. (Lundstrom, T)

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-SMS (HC) Hissong v. State of California Doc. 7 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 TIMOTHY HISSONG, 10 11 1:11-cv-00344-AWI-SMS (HC) Petitioner, FINDINGS AND RECOMMENDATION REGARDING PETITION FOR WRIT OF HABEAS CORPUS v. 12 [Doc. 1] STATE OF CALIFORNIA, 13 Respondent. 14 / 15 Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28 16 U.S.C. § 2254. 17 Petitioner filed the instant petition for writ of habeas corpus on February 28, 2011. 18 Petitioner challenges a Tulare County conviction of robbery and lewd and lascivious conduct. 19 Petitioner contends that his prior plea agreement was breached by the Kern County Superior 20 Court’s use of a single plea agreement as two strike enhancements. 21 Petitioner has previously filed a petition for writ of habeas corpus challenging the same 22 conviction, in case number 1:07-cv-01383 AWI SMS (HC), Hissong v. Walker, which was 23 denied on the merits on December, 2008. 24 DISCUSSION 25 Because the current petition was filed after April 24, 1996, the provisions of the 26 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current 27 petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). A federal court must dismiss a second or 28 1 Dockets.Justia.com 1 successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The 2 court must also dismiss a second or successive petition raising a new ground unless the petitioner 3 can show that 1) the claim rests on a new, retroactive, constitutional right or 2) the factual basis 4 of the claim was not previously discoverable through due diligence, and these new facts establish 5 by clear and convincing evidence that but for the constitutional error, no reasonable factfinder 6 would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). 7 However, it is not the district court that decides whether a second or successive petition meets 8 these requirements, which allow a petitioner to file a second or successive petition. 9 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by 10 this section is filed in the district court, the applicant shall move in the appropriate court of 11 appeals for an order authorizing the district court to consider the application." In other words, 12 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 13 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must 14 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave 15 to file the petition because a district court lacks subject-matter jurisdiction over a second or 16 successive petition. Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. 17 Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v. 18 United States, 96 F.3d 990, 991 (7th Cir. 1996). 19 A second or successive petition for habeas corpus is not considered “successive” if the 20 initial habeas petition was dismissed for a technical or procedural reason versus on the merits. 21 See Slack v. McDaniel, 529 U.S. 473, 485-87 (2000) (holding that a second habeas petition is not 22 successive if the initial habeas petition was dismissed for failure to exhaust); Stewart v. 23 Martinez-Villareal, 523 U.S. 637, 643-45 (1998) (a second habeas petition is not successive if the 24 claim raised in the first petition was dismissed by the district court as premature.) 25 The prior petition in 1:07-cv-01383-AWI-SMS (HC) was denied on the merits. The 26 instant petition for writ of habeas corpus is successive, and Petitioner makes no showing that he 27 has obtained prior leave from the Ninth Circuit to file the instant petition. That being so, this 28 Court has no jurisdiction to consider Petitioner's renewed application for relief from that 2 1 conviction under § 2254 and must dismiss the petition. See Greenawalt, 105 F.3d at 1277; 2 Nunez, 96 F.3d at 991. If Petitioner desires to proceed in bringing this petition for writ of habeas 3 corpus, he must file for leave to do so with the Ninth Circuit Court of Appeals. See 28 U.S.C. § 4 2244 (b)(3). 5 RECOMMENDATION 6 Accordingly, IT IS HEREBY RECOMMENDED that: 7 1. 8 The petition for writ of habeas corpus be DISMISSED without prejudice as a successive petition; and 9 2. The Clerk of Court be directed to terminate this action. 10 This Findings and Recommendation is submitted to the assigned United States District 11 Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 12 Local Rules of Practice for the United States District Court, Eastern District of California. 13 Within thirty (30) days after being served with a copy, any party may file written objections with 14 the court and serve a copy on all parties. Such a document should be captioned “Objections to 15 Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served 16 and filed within fourteen (14) days after service of the objections. The Court will then review the 17 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that 18 failure to file objections within the specified time may waive the right to appeal the District 19 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 IT IS SO ORDERED. 23 Dated: icido3 March 15, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3

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