(HC) Alexander v. Beard, No. 2:2015cv01885 - Document 6 (E.D. Cal. 2015)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 12/01/15 recommending that this action be dismissed for lack of jurisdiction. Referred to Judge Morrison C. England Jr. Objections due within 14 days. (Plummer, M)

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(HC) Alexander v. Beard Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEXIOS ALEXANDER, 12 13 14 15 No. 2:15-cv-1885-MCE-EFB P Petitioner, v. FINDINGS AND RECOMMENDATIONS JEFFREY BEARD, Respondent. 16 17 Petitioner is a state prisoner without counsel on a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The court has reviewed the petition as required by Rule 4 of the 19 Rules Governing Section 2254 Proceedings, and finds that the petition is second or successive 20 and must therefore be dismissed. 21 A petition is second or successive if it makes “claims contesting the same custody 22 imposed by the same judgment of a state court” that the petitioner previously challenged, and on 23 which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); 24 see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive 25 petition in a district court, a petitioner must obtain from the appellate court “an order authorizing 26 the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Without an order from 27 the appellate court, the district court is without jurisdiction to consider a second or successive 28 petition. See Burton, 549 U.S. 147. Dockets.Justia.com 1 In the present action, petitioner challenges a May 26, 2010 judgment of conviction entered 2 in the El Dorado County Superior Court in case number PO9CRF0020 for various offenses. ECF 3 No. 1 at 1, 64.1 The court has examined its records, and finds that petitioner challenged the same 4 judgment of conviction in an earlier action. Specifically, in Alexander v. Gower, No. 2:12-cv- 5 651-WBS-CKD (E.D. Cal.), the court considered petitioner’s challenge to the same judgment of 6 conviction. See Alexander, ECF No. 112 (magistrate judge’s August 20, 2014 findings and 7 recommendations to deny petition on the merits); ECF No. 121 (district judge’s November 24, 8 2014 order adopting findings and recommendations and denying petitioner’s application for a 9 writ of habeas corpus). Since petitioner challenges the same judgment now that he previously 10 challenged and which was adjudicated on the merits, the petition now pending is second or 11 successive. 12 Petitioner offers no evidence that the appellate court has authorized this court to consider 13 a second or successive petition. Since petitioner has not demonstrated that the appellate court has 14 authorized this court to consider a second or successive petition, this action must be dismissed for 15 lack of jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 16 Cir. 2001) (per curiam). 17 18 Accordingly, it is hereby RECOMMENDED that this action be dismissed for lack of jurisdiction. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 24 shall be served and filed within fourteen days after service of the objections. Failure to file 25 objections within the specified time may waive the right to appeal the District Court’s order. 26 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 27 1 28 For ease of reference, all references to page numbers in the petition are to those assigned via the court’s electronic filing system. 2 1 1991). In his objections petitioner may address whether a certificate of appealability should issue 2 in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing § 2254 3 Cases (the district court must issue or deny a certificate of appealability when it enters a final 4 order adverse to the applicant). 5 DATED: December 1, 2015. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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