(HC) Brownlee v. Rackley, No. 1:2015cv01610 - Document 7 (E.D. Cal. 2015)

Court Description: ORDER Directing Clerk of Court to Assign a District Judge to Case; FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus (Doc. 1 ) be DISMISSED as a Second and Successive Petition signed by Magistrate Judge Jennifer L. Thurston on 10/28/2015. This case has been assigned to District Judge Anthony W. Ishii and Magistrate Judge Jennifer L. Thurston. The new case number is 1:15-cv-01610-AWI-JLT (HC). Referred to Judge Ishii. Objections to F&R due within twenty-one (21) days. (Jessen, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TERRENCE BROWNLEE, Petitioner, 12 13 v. 14 R. J. RACKLEY, Respondent. 15 16 17 ) ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-01610-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS SECOND AND SUCCESSIVE ORDER DIRECTING THAT OBJECTIONS BE FILED WITHIN TWENTY-ONE DAYS ORDER DIRECTING CLERK OF THE COURT TO ASSIGN DISTRICT JUDGE TO CASE 18 Petitioner has filed a number of petitions for writ of habeas corpus all of which the Court has 19 20 dismissed as untimely or successive. Each of the prior petitions sought to challenge the same 21 conviction Petitioner is challenging in this action. Because the current petition is successive, it 22 recommends that the petition be DISMISSED. 23 I. PROCEDURAL HISTORY 24 The instant petition was filed on October 22, 2015, and challenges Petitioner’s August 4, 1980 25 sentence of seventeen years-to-life on the grounds that Petitioner was only sentenced to a determinate 26 term of seventeen years. In the course of conducting a preliminary screening of the petition, it has 27 come to the Court’s attention that Petitioner has previously filed numerous federal habeas petitions in 28 this Court challenging this same conviction. 1 The Court’s docket reflects that Petitioner has previously filed petitions with the following 1 2 case numbers: no. 1:01-cv-06120-OWW-SMS; no. 1:05-cv-00949-OWW-SMS; no. 1:06-cv-00320- 3 OWW-SMS; no. 1:09-cv-00765-OWW-SMS; no. 2:10-cv-00925-LKK-KJM; no. 2:10-cv-03478- 4 GGH; no. 1:14-01990-LJO-SAB; no. 2:14-cv-01249-KJM-KJN. All of these petitions challenged the 5 same 1980 conviction for the same reasons. All were dismissed either as untimely or successive. 6 II. DISCUSSION 7 A. Procedural Grounds for Motion to Dismiss 8 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 9 if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is 10 not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The 11 Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas 12 corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after 13 an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001). 14 B. Successive Petitions. 15 A federal court must dismiss a second or successive petition that raises the same grounds as a 16 prior petition. 28 U.S.C. § 2244(b)(1). The Court must also dismiss a second or successive petition 17 raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, 18 constitutional right or 2) the factual basis of the claim was not previously discoverable through due 19 diligence, and these new facts establish by clear and convincing evidence that but for the constitutional 20 error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. 28 21 U.S.C. § 2244(b)(2)(A)-(B). 22 However, it is not the district court that decides whether a second or successive petition meets 23 these requirements that allow a petitioner to file a second or successive petition, but rather the Ninth 24 Circuit. Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by this 25 section is filed in the district court, the applicant shall move in the appropriate court of appeals for an 26 order authorizing the district court to consider the application." In other words, Petitioner must obtain 27 leave from the Ninth Circuit before he can file a second or successive petition in district court. See 28 Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or successive 2 1 petition unless the Court of Appeals has given Petitioner leave to file the petition because a district 2 court lacks subject-matter jurisdiction over a second or successive petition. Pratt v. United States, 129 3 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 4 117 S.Ct. 794 (1997); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). Because the current petition was filed after April 24, 1996, the provisions of the Antiterrorism 5 6 and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current petition. Lindh v. 7 Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that he has obtained prior leave from 8 the Ninth Circuit to file this successive petition attacking his conviction. That being so, this Court has 9 no jurisdiction to consider Petitioner's renewed application for relief from that conviction under § 10 2254 and must dismiss the petition. See Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. If 11 Petitioner desires to proceed in bringing this petition for writ of habeas corpus, he must first file for 12 leave to do so with the Ninth Circuit. See 28 U.S.C. § 2244 (b)(3). ORDER 13 For the foregoing reasons, the Clerk of the Court is DIRECTED to assign a United States 14 15 District judge to this case. 16 RECOMMENDATION 17 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 18 DISMISSED as a second and successive petition. This Findings and Recommendation is submitted to the United States District Court Judge 19 20 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 21 Rules of Practice for the United States District Court, Eastern District of California. Within 21 days 22 after being served with a copy of this Findings and Recommendation, any party may file written 23 objections with the Court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be 25 served and filed within 10 days after service of the Objections. The Court will then review the 26 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 27 /// 28 /// 3 1 2 The parties are advised that failure to file objections within the specified time may waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 4 5 6 IT IS SO ORDERED. Dated: October 28, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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