(HC) Dosty v. Krammer, No. 2:2008cv02565 - Document 10 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/19/09 recommending that this action be dismissed on the ground that the petition is second or successive and petitioner has not demonstrated that the United States Court of Appeals for the Ninth Circuit has granted him leave to file it in this court. Referred to Judge Frank C. Damrell. Objections due within 20 days. (Plummer, M)

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(HC) Dosty v. Krammer Doc. 10 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 FRANKIE DOSTY, 11 Petitioner, 12 vs. 13 No. CIV S-08-2565 FCD EFB P M.C. KRAMMER, 14 Respondent. 15 16 FINDINGS AND RECOMMENDATIONS / Petitioner, a state prisoner proceeding without counsel on a petition for a writ of habeas 17 corpus pursuant to 28 U.S.C. § 2254. On May 27, 2009, the court ordered petitioner to 18 demonstrate either that the petition is not second or successive or submit evidence that the 19 appellate court has authorized this court to consider the petition. The court cautioned petitioner 20 that failure to comply with the order would result in a recommendation that this action be 21 dismissed on the ground that it is a successive petition filed without authorization from the 22 appellate court 23 On June 30, 2009, petitioner responded to the court’s order. His response concedes that 24 his previous petition was dismissed as untimely. He argues, however, that the instant petition is 25 not successive because it asserts a new ground for relief. The argument fails to address the 26 problem. Asserting a new ground for relief does not mean that the instant petition is not 1 Dockets.Justia.com 1 successive. As discussed in the May 27, 2009 order, petitioner is challenging the same judgment 2 that he previously challenged and which was adjudicated on the merits, which renders the instant 3 petition successive. See Burton v. Stewart, 549 U.S. 147 (2007); see also Slack v. McDaniel, 4 529 U.S. 473, 485-86 (2000). Petitioner has failed to demonstrate that his petition is not second 5 or successive. He also offers no evidence that the appellate court has authorized this court to 6 consider a second or successive petition. 7 Accordingly, it is hereby RECOMMENDED that this action be dismissed on the ground 8 that the petition is second or successive and petitioner has not demonstrated that the United 9 States Court of Appeals for the Ninth Circuit has granted him leave to file it in this court. 10 These findings and recommendations are submitted to the United States District Judge 11 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 20 days after 12 being served with these findings and recommendations, any party may file written objections 13 with the court and serve a copy on all parties. Such a document should be captioned “Objections 14 to Magistrate Judge’s Findings and Recommendations.” Failure to file objections within the 15 specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 16 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 Dated: November 19, 2009. 18 19 20 21 22 23 24 25 26 2

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