(HC) Griffin v. Sacramento County Superior Court, No. 2:2016cv02084 - Document 9 (E.D. Cal. 2016)

Court Description: ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/3/16 ORDERING that 4 Motion to Proceed IFP is GRANTED; It is RECOMMENDED that the petition be dismissed for lack of jurisdiction. Referred to Judge John A. Mendez; Objections to F&R due within 14 days.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DAVID GRIFFIN, 12 Petitioner, 13 14 15 No. 2:16-cv-2084 JAM CKD P v. ORDER & SACRAMENTO COUNTY SUPERIOR COURT, FINDINGS AND RECOMMENDATIONS Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with an application for writ of habeas 18 19 corpus pursuant to 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule 20 302 pursuant to 28 U.S.C. § 636(b)(1). Petitioner has submitted a declaration that makes the 21 showing required by 28 U.S.C. § 1915(a). Accordingly, petitioner may proceed with this action 22 in forma pauperis. Petitioner challenges his conviction in the Sacramento County Superior Court for “one 23 24 count of conspiracy to commit murder, one count of aggravated kidnapping, one count of 25 premeditated attempted murder, one count of first degree residential burglary, and one count of 26 active participation in a criminal street gang, which resulted in a sentence of 84 years to life[.]” 27 (ECF No. 1 at 3.) 28 //// 1 1 Court records reveal that petitioner challenged this same conviction in an earlier action, 2 Griffin v. Gipson, No. 2:13-cv-2516 MCE GGH (E.D. Cal.), in which petitioner’s habeas claims 3 were denied on the merits on March 11, 2015. (Id., ECF Nos. 20 & 21.) 4 A petition is second or successive if it makes “claims contesting the same custody 5 imposed by the same judgment of a state court” that the petitioner previously challenged, and on 6 which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147, 153 7 (2007). Before filing a successive petition in district court, a petitioner must obtain from the 8 appellate court “an order authorizing the district court to consider the application.” 28 U.S.C. § 9 2244(b)(3)(A). Without an order from the appellate court, the district court is without jurisdiction 10 11 to consider a second or successive petition. See Burton, 549 U.S. at 152, 157. As petitioner offers no evidence that the appellate court has authorized this court to 12 consider a successive petition challenging his conviction, this action should be dismissed for lack 13 of jurisdiction. 14 15 Accordingly, IT IS HEREBY ORDERED that petitioner’s request to proceed in forma pauperis is granted. 16 IT IS HEREBY RECOMMENDED that the petition be dismissed for lack of jurisdiction. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, petitioner may file written 20 objections with the court. Such a document should be captioned “Objections to Magistrate 21 Judge’s Findings and Recommendations.” In his objections petitioner may address whether a 22 certificate of appealability should issue in the event he files an appeal of the judgment in this 23 case. Petitioner is advised that failure to file objections within the specified time may waive the 24 right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 Dated: November 3, 2016 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 26 27 28 2 / grif2084.succ 2

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