(HC) Benson v. Spearman, No. 2:2017cv01881 - Document 18 (E.D. Cal. 2018)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 4/4/2018 RECOMMENDING 13 Motion to Dismiss be partially granted and this action be dismissed without prejudice. Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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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 JIMMY LEE BENSON, 12 13 14 No. 2:17-cv-1881 MCE KJN P Petitioner, v. FINDINGS AND RECOMMENDATIONS M.E. SPEARMAN, 15 Respondent. 16 17 18 19 I. Introduction Petitioner is a state prisoner, proceeding pro se, with an application for a writ of habeas 20 corpus pursuant to 28 U.S.C. § 2254. Respondent filed a motion to dismiss this action as 21 successive and, in the alternative, barred by the one-year statute of limitations. Petitioner filed an 22 opposition; respondent did not file a reply. 23 24 As set forth below, the undersigned recommends that the motion to dismiss be granted. II. Background 25 A San Joaquin County Superior Court jury found petitioner guilty of murder, three counts 26 of attempted murder, and participation in a street gang, as well as enhancements for personal and 27 intentional discharge of a firearm during the commission of a felony, causing great bodily injury 28 1 1 or death, participation in an offense where a principal personally and intentionally discharged a 2 firearm, causing great bodily injury or death, and the commission of an offense to benefit a street 3 gang. In March 2007, the trial court sentenced petitioner to life in prison without the possibility 4 of parole, plus four indeterminate terms of twenty-five years to life and a determinate term of 5 forty-two years and four months. The California Court of Appeal, Third Appellate District, 6 affirmed petitioner’s conviction and sentence in an unpublished opinion.1 The California 7 Supreme Court denied review on April 22, 2010. 8 III. Is the Petition Successive? 9 The court’s records reveal that petitioner has previously filed an application for a writ of 10 habeas corpus attacking the 2007 conviction and sentence challenged in this case. The previous 11 application was filed on January 18, 2011, and was denied on the merits on October 22, 2012. 12 Benson v. Biter, 2:11-cv-0150 JKS (E.D. Cal.). The petition is successive because petitioner 13 challenged his 2007 conviction in his prior federal habeas petition, which the court dismissed on 14 the merits. See Burton v. Stewart, 549 U.S. 147, 153 (2007) (petition is successive if it 15 challenges “the same custody imposed by the same judgment of a state court” as a prior petition). 16 Petitioner must therefore obtain permission from the Ninth Circuit before the petition may 17 proceed. See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted 18 by this section is filed in the district court, the applicant shall move in the appropriate court of 19 appeals for an order authorizing the district court to consider the application.”); see also Woods v. 20 Carey, 525 F.3d 886, 888 (9th Cir. 2008) (“Even if a petitioner can demonstrate that he qualifies 21 for one of these exceptions [to the bar on successive petitions], he must seek authorization from 22 the court of appeals before filing his new petition with the district court.”).2 No such 23 1 People v. Benson, 2010 WL 46681 (Cal. Ct. App. Jan. 7, 2010). 24 2 25 26 27 28 It does not appear that the instant claims fall within the exceptions to the bar on second or successive petitions because the asserted claims are not based on “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” Tyler v. Cain, 533 U.S. 656, 662 (2001). Rather, petitioner argues that People v. Chiu, 45 Cal.4th 1172 (2009) and In re Hansen, [sic] Cal. App. 4th (July 1, 2014), should be applied retroactively. (ECF No. 17 at 1.) Such cases are not U.S. Supreme Court cases. Nevertheless, such determination must be made by the United States Court of Appeals upon 2 1 2 authorization has been obtained in this case. Before petitioner can proceed with the instant application, he must move in the United 3 States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider 4 the application. 28 U.S.C. § 2244(b)(3). Therefore, petitioner’s application must be dismissed 5 without prejudice to its re-filing upon obtaining authorization from the United States Court of 6 Appeals for the Ninth Circuit. 7 IV. Is the Petition Time-Barred? 8 9 10 Because petitioner failed to obtain authorization from the Court of Appeals for the Ninth Circuit, this court need not address respondent’s alternative argument that the petition is barred by the one year statute of limitations. 11 In accordance with the above, IT IS HEREBY RECOMMENDED that: 12 1. Respondent’s motion to dismiss (ECF No. 13) be partially granted; and 13 2. This action be dismissed without prejudice. 14 These findings and recommendations are submitted to the United States District Judge 15 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 16 after being served with these findings and recommendations, petitioner may file written 17 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 18 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 19 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 20 F.2d 1153 (9th Cir. 1991). 21 Dated: April 4, 2018 22 23 24 /bens1881.mtd.hc.succ 25 26 27 28 petitioner’s motion for an order authorizing the district court to consider his second or successive petition. 28 U.S.C. § 2244(b). 3