(HC) Stewart v. Macomber, No. 1:2019cv00370 - Document 5 (E.D. Cal. 2019)
Court Description: ORDER Directing Clerk of Court to Assign District Judge; FINDINGS and RECOMMENDATIONS recommending that the Court Dismiss the Petition for Writ of Habeas Corpus (Doc. 1 ) With Prejudice for Lack of Jurisdiction and Decline to Issue a Certificate of Appealability signed by Magistrate Judge Sheila K. Oberto on 4/5/2019. This case has been assigned to District Judge Anthony W. Ishii and Magistrate Judge Sheila K. Oberto. The new case number is 1:19-cv-00370-AWI-SKO (HC). Referred to Judge Ishii. Objections to F&R due within thirty (30) days. (Jessen, A)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY W. STEWART, 12 Petitioner, 13 v. 14 J. MACOMBER, 15 No. 1:19-cv-00370-SKO (HC) FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR LACK OF JURISDICTION Respondent. 16 COURT CLERK TO ASSIGN DISTRICT JUDGE (Doc. 1) 17 18 Petitioner, Gregory W. Stewart, proceeds pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. Petitioner filed his petition for writ of habeas corpus on March 20, 20 2019, challenging his 1994 conviction for sale of a controlled substance in the Merced County 21 Superior Court. Petitioner has previously sought federal habeas relief with respect to the challenged 22 petition. Because Petitioner has not sought leave of the Ninth Circuit Court of Appeals to file a 23 second or successive petition, the undersigned recommends that the Court dismiss the petition. 24 I. Preliminary Screening 25 Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary 26 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it plainly 27 appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the Rules 28 1 1 Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A 2 petition for habeas corpus should not be dismissed without leave to amend unless it appears that no 3 tenable claim for relief can be pled were such leave to be granted. Jarvis v. Nelson, 440 F.2d 13, 4 14 (9th Cir. 1971). 5 II. No District Court Jurisdiction Over Second or Successive Petition 6 Because Petitioner filed this petition after April 24, 1996, the provisions of the 7 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) apply. Lindh v. Murphy, 521 8 U.S. 320, 327 (1997). When AEDPA applies, a federal court must dismiss a second or successive 9 petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The court must 10 also dismiss a second or successive petition raising a new ground unless the petitioner can show 11 that (1) the claim rests on a new retroactive constitutional right, or (2) the factual basis of the claim 12 was not previously discoverable through due diligence, and the new facts establish, by clear and 13 convincing evidence, that but for the constitutional error, no reasonable factfinder would have 14 found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A) and (B). 15 The circuit court of appeals, not the district court, must decide whether a second or 16 successive petition satisfies the statutory requirements to proceed. 28 U.S.C. §2244(b)(3)(A) 17 ("Before a second or successive petition permitted by this section is filed in the district court, the 18 applicant shall move in the appropriate court of appeals for an order authorizing the district court 19 to consider the application"). This means that a petitioner may not file a second or successive 20 petition in district court until he has obtained leave from the court of appeals. Felker v. Turpin, 518 21 U.S. 651, 656-57 (1996). In the absence of an order from the appropriate circuit court, a district 22 court lacks jurisdiction over the petition and must dismiss the second or successive 23 petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997). 24 Petitioner has not secured leave from the Ninth Circuit Court of Appeals to file the above- 25 captioned petition. Accordingly, the Court recommends dismissing the petition for lack of 26 jurisdiction. 27 28 2 1 III. 2 Certificate of Appealability A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district 3 court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. 4 Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a 5 certificate of appealability is 28 U.S.C. § 2253, which provides: 6 (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. 7 8 (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. 9 10 11 (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— 12 13 (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 14 15 (B) the final order in a proceeding under section 2255. 16 (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. 17 18 20 (3) The certificate of appealability under paragraph (1) shall indicate which specific issues or issues satisfy the showing required by paragraph (2). 21 If a court denies a habeas petition, the court may only issue a certificate of appealability "if 19 22 jurists of reason could disagree with the district court's resolution of his constitutional claims or 23 that jurists could conclude the issues presented are adequate to deserve encouragement to proceed 24 25 further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the 26 petitioner is not required to prove the merits of his case, he must demonstrate "something more than 27 the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. 28 at 338. 3 1 Reasonable jurists would not find the Court's determination that it lacks jurisdiction over 2 the petition to be debatable or wrong, or conclude that the issues presented required further 3 adjudication. Accordingly, the undersigned recommends that the Court decline to issue a certificate 4 of appealability. 5 6 IV. The undersigned recommends that the Court dismiss the Petition for writ of habeas corpus 7 8 Conclusion and Recommendation with prejudice for lack of jurisdiction and decline to issue a certificate of appealability. 9 These Findings and Recommendations will be submitted to the United States District Judge 10 assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days 11 after being served with these Findings and Recommendations, either party may file written 12 13 14 objections with the Court. The document should be captioned AObjections to Magistrate Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and filed within 15 fourteen (14) days after service of the objections. The parties are advised that failure to file 16 objections within the specified time may constitute waiver of the right to appeal the District Court's 17 order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923 18 F.2d 1391, 1394 (9th Cir. 1991)). 19 The Court Clerk is hereby directed to assign a district judge to this action. 20 21 22 IT IS SO ORDERED. 23 Dated: 24 April 5, 2019 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 25 26 27 28 4 .
]]>
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.
