(HC) Wheeler v. Lizarraga, No. 1:2015cv00663 - Document 14 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Sheila K. Oberto on 7/25/2015 recommending that 1 Petition for Writ of Habeas Corpus be dismissed. Referred to Judge Anthony W. Ishii; Objections to F&R due by 8/31/2015. (Lundstrom, T)

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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 10 WILLIE R. WHEELER, 11 Petitioner, 12 13 v. Case No. 1:15-cv-00663-AWI-SKO HC FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE COURT DISMISS THE PETITION FOR LACK OF JURISDICTION JOE LIZARRAGA, Warden, 14 Respondent. (Docs. 1 and 13) 15 16 Petitioner is a state prisoner serving a fourteen-year term of imprisonment for robbery. He 17 is proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 18 U.S.C. § 2254. This Court previously denied a petition for writ of habeas corpus arising from the 19 same conviction. See Wheeler v. Martel, 2011 WL 1566021 (E.D. Cal. April 25, 2011) (No. 1:09- 20 cv-1678-DLB HC). 21 I. 22 Preliminary Screening Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary 23 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly 24 appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules 25 Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 26 II. 27 28 Second Petition Because Petitioner filed this petition after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply. Lindh v. Murphy, 521 1 1 U.S. 320, 327 (1997). When AEDPA applies, a federal court must dismiss a second or successive 2 petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The court must 3 also dismiss a second or successive petition raising a new ground unless the petitioner can show 4 that (1) the claim rests on a new retroactive constitutional right, or (2) the factual basis of the claim 5 was not previously discoverable through due diligence, and the new facts establish, by clear and 6 convincing evidence, that but for the constitutional error, no reasonable factfinder would have 7 found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A) and (B). The circuit court of appeals, not the district court, must decide whether a second or 8 9 successive petition satisfies the statutory requirements to proceed. 28 U.S.C. §2244(b)(3)(A) 10 ("Before a second or successive petition permitted by this section is filed in the district court, the 11 applicant shall move in the appropriate court of appeals for an order authorizing the district court to 12 consider the application"). This means that a petitioner may not file a second or successive petition 13 in district court until he has obtained leave from the court of appeals. Felker v. Turpin, 518 U.S. 14 651, 656-57 (1996). In the absence of an order from the appropriate circuit court, a district court 15 lacks jurisdiction over the petition and must dismiss the second or successive petition. Greenawalt 16 v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997). 17 Petitioner presents no indication that he has obtained an order from the Ninth Circuit 18 authorizing the filing of yet another successive petition attacking his 1995 conviction. As a result, 19 this Court lacks jurisdiction to consider the petition and must dismiss it. See Greenawalt, 105 F.3d 20 at 1277. 21 III. Reconsideration Motion Moot If the Court adopts the recommendation to dismiss the petition for lack of jurisdiction, it 22 23 need not reach Petitioner's motion for appointment of counsel (Doc. 13). 24 IV. 25 26 Conclusion and Recommendation The undersigned RECOMMENDS that the Court dismiss the petition for writ of habeas corpus for lack of jurisdiction. 27 28 2 1 These Findings and Recommendations will be submitted to the United States District Judge 2 assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days 3 after being served with these Findings and Recommendations, either party may file written 4 objections with the Court. The document should be captioned AObjections to Magistrate Judge=s 5 Findings and Recommendations.@ Replies to the objections, if any, shall be served and filed within 6 fourteen (14) days after service of the objections. The parties are advised failure to file objections 7 within the specified time may constitute waiver of the right to appeal the District Court's order. 8 9 10 Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 11 12 13 14 IT IS SO ORDERED. Dated: July 25, 2015 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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