(HC) Lupercio v. Flier, No. 1:2023cv00821 - Document 16 (E.D. Cal. 2023)

Court Description: FINDINGS and RECOMMENDATIONS to dismiss successive Petition for Writ of Habeas Corpus 1 ; directing Clerk of Court to assign District Judge signed by Magistrate Judge Sheila K. Oberto on 5/30/2023. Referred to Judge Ana de Alba; Objections to F&R due within 21-Days. (Lundstrom, T)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RAMON NAVARRO LUPERCIO, 12 13 14 15 Case No. 1:23-cv-00821-SKO (HC) Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS v. ATTORNEY, ANDREW and FLIER, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE Respondent. [TWENTY-ONE DAY OBJECTION DEADLINE] 16 17 18 On May 9, 2023, Petitioner filed the instant petition for writ of habeas corpus in this 19 Court. Because the petition is successive, the Court will recommend it be DISMISSED. DISCUSSION 20 21 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 22 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 23 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 24 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 25 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it 26 appears that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 27 440 F.2d 13, 14 (9th Cir. 1971). 28 A federal court must dismiss a second or successive petition that raises the same grounds 1 1 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 2 petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, 3 retroactive, constitutional right or 2) the factual basis of the claim was not previously 4 discoverable through due diligence, and these new facts establish by clear and convincing 5 evidence that but for the constitutional error, no reasonable factfinder would have found the 6 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the 7 district court that decides whether a second or successive petition meets these requirements. Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by 8 9 this section is filed in the district court, the applicant shall move in the appropriate court of 10 appeals for an order authorizing the district court to consider the application." In other words, 11 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 12 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must 13 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave 14 to file the petition because a district court lacks subject-matter jurisdiction over a second or 15 successive petition. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 16 1270, 1274 (9th Cir. 2001). Petitioner challenges his 2003 conviction for attempted murder with the use of a firearm, 17 18 claiming, among other things, that his counsel was ineffective. (See Doc. 1.) Petitioner 19 previously sought federal habeas relief in this Court with respect to the same conviction 20 numerous times. See Lupercio v. Gonzalez, No. 1:08-cv-00012-LJO-JLT (dismissed as 21 untimely); Lupercio v. Sherman, No. 1:15-cv-00915-DAD-MJS (dismissed as successive); 22 Lupercio v. Sherman, No. 1:15-cv-01834-DAD-MJS (same); Lupercio v. Sherman, No. 1:16-cv23 00233-DAD-MJS (same); Lupercio v. People of the State of California, No. 1:20-cv-0092524 DAD-JDP (same); Lupercio v. Visalia Police Department, No. 1:21-cv-00306-DAD-JLT (same); 25 Lupercio v. Mendoza, No. 1:21-cv-00579-DAD-JLT (same); Lupercio v. Office of the Clerk of 26 Court, No. 1:22-cv-00338-ADA-HBK (same).1 27 1 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 28 118, 119 (9th Cir. 1980). 2 The Court finds that the instant petition is “second or successive” under 28 U.S.C. § 1 2 2244(b). See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding “dismissal of a 3 first habeas petition for untimeliness presents a ‘permanent and incurable’ bar to federal review 4 of the underlying claims,” and thus renders subsequent petitions “second or successive”). 5 Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file his 6 successive petition. Therefore, this Court has no jurisdiction to consider Petitioner’s renewed 7 application for relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. 8 at 157. ORDER 9 Accordingly, the Clerk of Court is DIRECTED to assign a District Judge to this case. 10 RECOMMENDATION 11 For the foregoing reasons, the Court HEREBY RECOMMENDS that the petition be 12 13 DISMISSED as successive. This Findings and Recommendation is submitted to the United States District Court 14 15 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 16 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 17 California. Within twenty-one days after being served with a copy, Petitioner may file written 18 objections with the Court. Such a document should be captioned “Objections to Magistrate 19 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s 20 ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections 21 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 22 Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 IT IS SO ORDERED. 25 Dated: /s/ Sheila K. Oberto May 30, 2023 . UNITED STATES MAGISTRATE JUDGE 26 27 28 3

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