(HC)Rodriguez v. Mendoza-Powers, No. 1:2013cv01513 - Document 10 (E.D. Cal. 2013)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that the 1 Petition for Writ of Habeas Corpus be Dismissed as Successive signed by Magistrate Judge Stanley A. Boone on 11/14/2013. Referred to Judge Anthony W. Ishii. Objections to F&R due by 12/17/2013. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ANDY DELGADO RODRIGUEZ, 12 13 Case No. 1:13-cv-01513-AWI-SAB-HC Petitioner, FINDINGS AND RECOMMENDATION REGARDING SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS v. 14 KATHY MENDOZA-POWERS, Warden, 15 Respondent. 16 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. 20 In the petition filed on September 18, 2013, Petitioner challenges his 1997 conviction 21 sustained in Tulare County Superior Court for: attempted willful, deliberate and premeditated 22 murder; assault with a firearm; two counts of second degree robbery with a firearm; two counts 23 of false imprisonment by violence; arson; attempted second degree robbery while armed with a 24 firearm; and unlawful taking of a vehicle. A review of the Court’s dockets and files shows 25 Petitioner has previously sought habeas relief with respect to this conviction in Rodriguez v. 26 Yates, Case No. 1:09-CV-00119-AWI-SMS-HC. In that case, the petition was dismissed with 27 prejudice as time-barred. Petitioner appealed the dismissal to the Ninth Circuit Court of 28 Appeals, and the appeal was denied on June 16, 2011. 1 1 I. 2 DISCUSSION 3 A federal court must dismiss a second or successive petition that raises the same grounds 4 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 5 petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, 6 retroactive, constitutional right or 2) the factual basis of the claim was not previously 7 discoverable through due diligence, and these new facts establish by clear and convincing 8 evidence that but for the constitutional error, no reasonable factfinder would have found the 9 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the 10 district court that decides whether a second or successive petition meets these requirements. 11 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by 12 this section is filed in the district court, the applicant shall move in the appropriate court of 13 appeals for an order authorizing the district court to consider the application." In other words, 14 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 15 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must 16 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave 17 to file the petition because a district court lacks subject-matter jurisdiction over a second or 18 successive petition. Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. 19 Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v. 20 United States, 96 F.3d 990, 991 (7th Cir. 1996). 21 Because the current petition was filed after April 24, 1996, the provisions of the 22 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current 23 petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that he has 24 obtained prior leave from the Ninth Circuit to file his successive petition attacking the 25 conviction. That being so, this Court has no jurisdiction to consider Petitioner's renewed 26 application for relief from that conviction under Section 2254 and must dismiss the petition. See 27 Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. 28 /// 2 1 II. 2 RECOMMENDATION 3 Accordingly, the Court HEREBY RECOMMENDS that the petition for writ of habeas 4 corpus be DISMISSED as successive. 5 This Findings and Recommendation is submitted to the Honorable Anthony W. Ishii, 6 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and 7 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 8 California. 9 Within thirty (30) days after being served with a copy, Petitioner may file written 10 objections with the Court. Such a document should be captioned “Objections to Magistrate 11 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s 12 ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections 13 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 14 Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 17 IT IS SO ORDERED. Dated: November 14, 2013 UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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