-MJS (HC) Roberts v. Martel, No. 1:2011cv01543 - Document 12 (E.D. Cal. 2011)
Court Description: FINDINGS and RECOMMENDATIONS to DISMISS Successive 1 Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2244(b), signed by Magistrate Judge Michael J. Seng on 9/14/2011, referred to Judge O'Neill. Objections to F&R Due Within Thirty (30) Days. (Marrujo, C)
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-MJS (HC) Roberts v. Martel Doc. 12 1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRICT OF CALIFORNIA 11 HOWARD LEE ROBERTS, 12 13 14 15 16 ) ) Petitioner, ) ) v. ) ) ) MIKE MARTEL, Warden, ) ) Respondent. ) ________________________________) 1:11-cv-01543 LJO MJS HC FINDINGS AND RECOMMENDATION TO DISMISS SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2244(b) 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 19 pursuant to 28 U.S.C. § 2254. 20 In the petition filed on August 3, 2011, Petitioner challenges his August 30, 2003 21 conviction in Fresno County Superior Court for robbery. (Pet. at 1, ECF No. 1.) A review of the 22 Court’s docket and files shows Petitioner has previously sought federal habeas relief with 23 respect to this conviction. In Roberts v. Felker, 2009 U.S. Dist. LEXIS 58139 (E.D. Cal., June 24 18, 2009) (Case No. 1:07-cv-01197-JLS-POR), Petitioner filed a petition for writ of habeas 25 corpus challenging the same underlying conviction. The petition was dismissed on the merits 26 on June 18, 2009. 27 /// 28 /// U .S. D istrict C ourt E. D . C alifornia -1Dockets.Justia.com 1 I. DISCUSSION 2 A court must dismiss a second or successive petition that raises the same grounds as 3 a prior petition. 28 U.S.C. § 2244(b)(1). A court must also dismiss a second or successive 4 petition raising a new ground unless the petitioner can show that 1) the claim rests on a new 5 constitutional right, made retroactive by the United States Supreme Court or 2) the factual 6 basis of the claim was not previously discoverable through due diligence, and these new facts 7 establish by clear and convincing evidence that but for the constitutional error, no reasonable 8 factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 9 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a second or 10 successive petition meets these requirements; the Petitioner must first file a motion with the 11 appropriate court of appeals to be authorized to file a second or successive petition with the 12 district court. 13 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted 14 by 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 19 leave to file the petition because a district court lacks subject-matter jurisdiction over a second 20 or successive petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997). 21 Because the current petition was filed after April 24, 1996, the provisions of the 22 Antiterrorism and Effective Death Penalty Act of 1996 apply to Petitioner's current petition. 23 Lindh v. Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that he has obtained 24 prior leave from the Ninth Circuit to file his successive petition attacking the conviction. That 25 being so, this Court has no jurisdiction to consider Petitioner's renewed application for relief 26 under Section 2254 and must dismiss the petition. See Greenawalt, 105 F.3d at 1277. If 27 Petitioner desires to proceed in bringing this petition for writ of habeas corpus, he must file for 28 leave to do so with the Ninth Circuit. See 28 U.S.C. § 2244(b)(3). U .S. D istrict C ourt E. D . C alifornia -2- 1 II. Accordingly, the Court HEREBY RECOMMENDS the habeas corpus petition be 2 3 RECOMMENDATION DISMISSED as successive. 4 This Findings and Recommendation is submitted to the assigned United States District 5 Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 6 Local Rules of Practice for the United States District Court, Eastern District of California. 7 Within thirty (30) days after the date of service of this Findings and Recommendation, any 8 party may file written objections with the Court and serve a copy on all parties. Such a 9 document should be captioned “Objections to Magistrate Judge’s Findings and 10 Recommendation.” Replies to the Objections shall be served and filed within fourteen (14) 11 days after service of the Objections. The Finding and Recommendation will then be submitted 12 to the District Court for review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 13 (b)(1)(c). The parties are advised that failure to file objections within the specified time may 14 waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th 15 Cir. 1991). 16 IT IS SO ORDERED. 17 18 Dated: ci4d6 September 14, 2011 Michael J. Seng /s/ UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia -3-
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