(HC) Brown v. Stewart, No. 1:2018cv00906 - Document 8 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS for Dismissal of Petition as Second or Successive; Court Clerk to ASSIGN District Judge - CASE ASSIGNED to Chief Judge Lawrence J. O'Neill and Magistrate Judge Sheila K. Oberto. New Case No. 1:18-cv-00906 LJO SKO (HC) 1 , 2 , signed by Magistrate Judge Sheila K. Oberto on 7/9/2018. (Hellings, J)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAYMOND A. BROWN, 12 13 14 15 16 No. 1:18-cv-00906-SKO HC Petitioner, v. SHERMAN STEWART, Warden, Respondent. FINDINGS AND RECOMMENDATIONS FOR DISMISSAL OF PETITIONER AS SECOND OR SUCCESSIVE COURT CLERK TO ASSIGN DISTRICT JUDGE 17 18 (Docs. 1, 2) 19 20 Screening Order 21 Petitioner, Raymond A. Brown, is a state prisoner proceeding pro se with a petition for writ 22 of habeas corpus pursuant to 28 U.S.C. § 2254. The petition alleges two grounds for habeas relief: 23 (1) insufficient evidence, and (2) ineffective assistance of counsel. Also before the Court is 24 Petitioner’s “Notice of Motion Request to File a Second or Successive Habeas Corpus Petition in 25 this Court.” (Doc. 2.) Because this Court does not have jurisdiction over a second or successive 26 petition, the Court recommends dismissing the petition. 27 28 1 1 I. Procedural and Factual Background 2 Petitioner was convicted in Merced County Superior Court of (1) murder with the special 3 circumstance of robbery (Cal. Penal Code §§ 187(a), 190.2(a)(17)(A); (2) two counts of attempted 4 robbery (Cal. Penal Code §§ 211, 664); and (3) robbery (Cal. Penal Code § 211). Brown v. 5 McDonald, No. 1:11-cv-01013-AWI-DLB (HC), 2011 WL 4375040, at *1 (E.D. Cal. Sept. 19, 6 2011). Petitioner was sentenced to a term of imprisonment of six years and four months. Id. 7 On June 13, 2011, Petitioner filed a petition for federal habeas relief pursuant to 28 U.S.C 8 § 2254, which the Court denied. Id. Petitioner filed the above-captioned petition on June 21, 2018, 9 in the Sacramento Division of the United States District Court for the Eastern District of California. 10 The case was transferred to this Court on July 3, 2018. 11 II. Preliminary Screening 12 Rule 4 of the Rules Governing § 2254 cases requires the Court to conduct a preliminary 13 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly 14 appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules 15 Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A 16 petition for habeas corpus should not be dismissed without leave to amend unless it appears that no 17 tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson, 440 F.2d 18 13, 14 (9th Cir. 1971). 19 III. No District Court Jurisdiction Over a Second or Successive Petition 20 The circuit court of appeals, not the district court, must decide whether a second or 21 successive petition satisfies the statutory requirements to proceed. 28 U.S.C. § 2244(b)(3)(A) 22 ("Before a second or successive petition permitted by this section is filed in the district court, the 23 applicant shall move in the appropriate court of appeals for an order authorizing the district court 24 to consider the application"). This means that a petitioner may not file a second or successive 25 petition in district court until he has obtained leave from the court of appeals. Felker v. Turpin, 518 26 U.S. 651, 656-57 (1996). In the absence of an order from the appropriate circuit court, a district 27 court lacks jurisdiction over the petition and must dismiss the second or successive petition. 28 Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997). 2 1 Petitioner has not secured leave from the Ninth Circuit Court of Appeals to file the above- 2 captioned petition. Accordingly, the Court must recommend dismissing it for lack of jurisdiction. 3 III. 4 Certificate of Appealability A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district 5 court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. 6 Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a 7 certificate of appealability is 28 U.S.C. § 2253, which provides: 8 9 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 10 11 12 13 14 15 16 17 (b) There shall be no right of appeal from a final order in a proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a criminal offense against the United States, or to test the validity of such person's detention pending removal proceedings. (c) (1) Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from— (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or (B) the final order in a proceeding under section 2255. 18 19 20 21 22 (2) A certificate of appealability may issue under paragraph (1) only if the applicant has made a substantial showing of the denial of a constitutional right. (3) The certificate of appealability under paragraph (1) shall indicate which specific issues or issues satisfy the showing required by paragraph (2). 23 24 If a court denies a habeas petition, the court may only issue a certificate of appealability "if 25 jurists of reason could disagree with the district court's resolution of his constitutional claims or 26 that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 27 further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the 28 3 1 petitioner is not required to prove the merits of his case, he must demonstrate "something more than 2 the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. 3 at 338. 4 Reasonable jurists would not find the Court's determination that the petition is a second or 5 6 successive petition to be debatable or wrong, or conclude that the issues presented required further 7 adjudication. Accordingly, the Court recommends declining to issue a certificate of appealability. 8 IV. 9 10 Recommendation and Order Based on the foregoing, the undersigned recommends that the Court dismiss the petition in this action as second or successive and decline to issue a certificate of appealability. 11 These Findings and Recommendations will be submitted to the United States District Judge 12 13 14 assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days after being served with these Findings and Recommendations, either party may file written 15 objections with the Court. The document should be captioned AObjections to Magistrate Judge=s 16 Findings and Recommendations.@ Replies to the objections, if any, shall be served and filed within 17 fourteen (14) days after service of the objections. The parties are advised that failure to file 18 objections within the specified time may constitute waiver of the right to appeal the District Court's 19 order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 20 21 F.2d 1391, 1394 (9th Cir. 1991)). The Court Clerk is hereby directed to assign a district judge to this action. 22 23 24 25 26 IT IS SO ORDERED. Dated: July 9, 2018 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 27 28 4 . 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5