(HC) Wilson v. Gonzales, No. 1:2011cv02088 - Document 9 (E.D. Cal. 2012)
Court Description: FINDINGS and RECOMMENDATIONS Recommending the 1 Petition for Writ of Habeas Corpus be Dismissed as Successive; ORDER DIRECTING Clerk of Court to Assign Case to a Federal District Judge; ORDER DIRECTING Objections be Filed within Twenty Days signed by Magistrate Judge Jennifer L. Thurston on 1/3/2011. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 1/26/2012. (Sant Agata, S)
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(HC) Wilson v. Gonzales Doc. 9 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 CHRISTOPHER M. WILSON, ) ) Petitioner, ) ) v. ) ) ) T. L. GONZALES, Warden, ) ) Respondent. ) ____________________________________) 1:11-cv-02088-JLT HC FINDINGS AND RECOMMENDATIONS TO DISMISS SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2244(b) ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO A FEDERAL DISTRICT JUDGE ORDER DIRECTING OBJECTIONS TO BE FILED WITHIN TWENTY DAYS 17 18 19 20 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 21 In the petition filed on December 19, 2011, Petitioner challenges his 2003 conviction in Kern 22 County Superior Court for receiving stolen property and obstruction of a police officer. As a result of 23 California’s Three Strikes Law, Petitioner was sentenced to a prison term of twenty-five years to 24 life. (Doc. 1, p. 1). 25 A review of the Court’s dockets and files, as well as Petitioner’s own admission in the 26 27 28 U .S. D istrict C ourt E. D . C alifornia 1 Dockets.Justia.com 1 petition, shows Petitioner has previously sought habeas relief with respect to this conviction.1 In case 2 no. 1:07-cv-00436-MLH-CAB HC, Petitioner raised the following grounds for relief: (1) insufficient 3 evidence to convict Petitioner on the substantive charges; (2) improper merger in the substantive 4 convictions; (3) improper denial of a continuance; (4) improper response by the trial judge to a juror 5 query regarding punishment; (5) instructional error; and (6) cumulative error. On June 17, 2009, the 6 Court denied that petition on its merits and entered judgment against Petitioner. Subsequently, on 7 August 12, 2011, the United States Court of Appeals for the Ninth Circuit dismissed the appeal and 8 declined to issue a Certificate of Appealability. The Court’s records indicate that, on review, the 9 United States Court of Appeals for the Ninth Circuit denied issuance of a certificate of appealability. 10 In the latest petition, Petitioner contends, in addition to his claims of ineffective assistance of 11 counsel, that “newly discovered evidence” in the form of Petitioner’s disadvantaged childhood and 12 his mental and emotional problems should have been raised during trial proceedings, especially 13 during the hearing to dismiss one of the prior strikes and during his sentencing hearing. Petitioner 14 also contends that his petition is timely, or if untimely, should be excused for good cause, and that 15 the petition, though successive, should be allowed because he did not understand the claims raised in 16 the first petition, which had been prepared by another inmate, and because of the “newly discovered 17 evidence” referred to above. 18 19 DISCUSSION A federal court must dismiss a second or successive petition that raises the same grounds as a 20 prior petition. 28 U.S.C. § 2244(b)(1). The Court must also dismiss a second or successive petition 21 raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, 22 constitutional right or 2) the factual basis of the claim was not previously discoverable through due 23 diligence, and these new facts establish by clear and convincing evidence that but for the 24 constitutional error, no reasonable fact-finder would have found the applicant guilty of the 25 underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court that decides 26 1 27 28 The Court takes judicial notice of the docket in case no. 1:02-cv-05251-REC-BAK HC. Fed. R. Evid. 201(b); United States v. Bernal-Obeso, 989 F.2d 331, 333 (9th Cir.1993); Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n.1 (N.D.Cal.1978), aff’d, 645 F.2d 699, (9 th Cir.) (Judicial notice may be taken of court records). U .S. D istrict C ourt E. D . C alifornia 2 1 whether a second or successive petition meets these requirements, which then allow a petitioner to 2 file a second or successive petition.2 3 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by this 4 section is filed in the district court, the applicant shall move in the appropriate court of appeals for an 5 order authorizing the district court to consider the application." In other words, Petitioner must 6 obtain leave from the Ninth Circuit before he can file a second or successive petition in district 7 court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or 8 successive petition unless the Court of Appeals has given Petitioner leave to file the petition because 9 a district court lacks subject-matter jurisdiction over a second or successive petition. Pratt v. United 10 States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), 11 cert. denied, 117 S.Ct. 794 (1997); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). 12 Because the current petition was filed after April 24, 1996, the provisions of the 13 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current 14 petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that he has 15 obtained prior leave from the Ninth Circuit to file his successive petition attacking his 2003 Kern 16 County conviction. That being so, this Court has no jurisdiction to consider Petitioner's renewed 17 application for relief from that conviction under § 2254 and must dismiss the petition. See 18 Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. If Petitioner desires to proceed in bringing 19 this petition for writ of habeas corpus, he must first file for leave to do so with the Ninth Circuit. 20 See 28 U.S.C. § 2244 (b)(3). 21 ORDER 22 Accordingly, it is HEREBY ORDERED as follows: 23 1. 24 25 The Clerk of the Court is DIRECTED to assign a United States District Judge to this case. /// 26 2 27 28 This is where Petitioner’s reasoning goes seriously awry. Petitioner makes various claims about why a second and successive petition should be permitted. However, this Court has no authority to consider those reasons. Only the Ninth Circuit can determine whether a second and successive petition should be allowed. Accordingly, Petitioner must makes his arguments to the Ninth Circuit, not this Court. U .S. D istrict C ourt E. D . C alifornia 3 1 2 3 4 RECOMMENDATION Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED as successive. This Findings and Recommendation is submitted to the United States District Court Judge 5 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 6 Local Rules of Practice for the United States District Court, Eastern District of California. Within 7 twenty (20) days after being served with a copy, any party may file written objections with the court 8 and serve a copy on all parties. Such a document should be captioned “Objections to Magistrate 9 Judge’s Findings and Recommendations.” The Court will then review the Magistrate Judge’s ruling 10 pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to file objections within 11 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 12 F.2d 1153 (9th Cir. 1991). 13 14 15 IT IS SO ORDERED. 16 Dated: January 3, 2012 9j7khi /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 U .S. D istrict C ourt E. D . C alifornia 4
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