(HC) Kendall v. Tampkins, No. 1:2015cv01703 - Document 5 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Habeas Corpus as Successive; ORDER DIRECTING That Objections Be Filed Within Twenty-One Days; ORDER DIRECTING Clerk of the Court to Assign District Judge to Case, signed by Magistrate Judge Jennifer L. Thurston on 11/16/15. (Hellings, J)

Download PDF

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LEROY E. KENDALL, Petitioner, 12 v. 13 14 CYNTHIA TAMPKINS, Respondent. 15 16 17 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:15-cv-01703-JLT FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS AS 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 previously filed a petition in this Court, i.e., case number 1:13-cv-00209-LJO- 19 JLT, on February 8, 2013 in which he challenged the same conviction at issue in the current petition. 20 In the earlier matter, the Court denied the petition on its merits on October 30, 2015. Because the 21 current petition is successive and Petitioner has not demonstrated that the Ninth Circuit Court of 22 Appeals has granted him permission to proceed on a successive petition, the Court recommends the 23 matter be DISMISSED. 24 I. DISCUSSION 25 A. Preliminary Review of Petition. 26 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition if 27 it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not 28 entitled to relief in the district court . . . .” The Advisory Committee Notes to Rule 8 indicate that the 1 1 court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant 2 to the respondent’s motion to dismiss, or after an answer to the petition has been filed. Herbst v. Cook, 3 260 F.3d 1039 (9th Cir.2001). 4 B. Successive Petitions. [§ 2254] 5 A federal court must dismiss a second or successive petition that raises the same grounds as a 6 prior petition. 28 U.S.C. § 2244(b)(1). The Court must also dismiss a second or successive petition 7 raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, 8 constitutional right or 2) the factual basis of the claim was not previously discoverable through due 9 diligence, and these new facts establish by clear and convincing evidence that but for the constitutional 10 error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. 28 11 U.S.C. § 2244(b)(2)(A)-(B). 12 However, it is not the district court that decides whether a second or successive petition 13 meets these requirements that allow a petitioner to file a second or successive petition, but rather 14 the Ninth Circuit. Section 2244 (b)(3)(A) provides: "Before a second or successive application 15 permitted by this section is filed in the district court, the applicant shall move in the appropriate court 16 of appeals for an order authorizing the district court to consider the application." In other words, 17 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive petition in 18 district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any 19 second or successive petition unless the Court of Appeals has given Petitioner leave to file the petition 20 because a district court lacks subject-matter jurisdiction over a second or successive petition. Pratt v. 21 United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 22 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). 23 Because the current petition was filed after April 24, 1996, the provisions of the Antiterrorism 24 and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current petition. Lindh v. 25 Murphy, 521 U.S. 320, 327 (1997). As mentioned, Petitioner previously filed a federal petition in this 26 Court challenging the same 2010 Kern County Superior Court conviction, and this Court denied the 27 petition on its merits. Petitioner makes no showing that he has obtained prior leave from the Ninth 28 Circuit to file this successive petition attacking the same conviction. That being so, this Court has no 2 1 jurisdiction to consider Petitioner's renewed application for relief from that conviction under § 2254 2 and must dismiss the petition. See Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. If Petitioner 3 desires to proceed in bringing this petition for writ of habeas corpus, he must first file for leave to do so 4 with the Ninth Circuit. See 28 U.S.C. § 2244 (b)(3). 5 ORDER 6 For the foregoing reasons, the Clerk of the Court is DIRECTED to assign a United States 7 District judge to this case. 8 RECOMMENDATION 9 Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be 10 11 DISMISSED as a second and successive petition. This Findings and Recommendation is submitted to the United States District Court Judge 12 assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 13 Rules of Practice for the United States District Court, Eastern District of California. Within 21 days 14 after being served with a copy of this Findings and Recommendation, any party may file written 15 objections with the Court and serve a copy on all parties. Such a document should be captioned 16 “Objections to Magistrate Judge’s Findings and Recommendation.” The Court will then review the 17 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to 18 file objections within the specified time may waive the right to appeal the Order of the District Court. 19 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 20 21 22 23 IT IS SO ORDERED. Dated: November 16, 2015 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 3

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.