(HC) Strawther v. Biter, No. 2:2018cv00932 - Document 16 (E.D. Cal. 2019)

Court Description: ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/17/2019 ORDERING Clerk of Court to randomly assign a U.S. District Judge to this action and RECOMMENDING this action be dismissed for lack of jurisdiction. Assigned and referred to Judge John A. Mendez. Objections due within 14 days after being served with these findings and recommendations. (Henshaw, R)
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(HC) Strawther v. Biter Doc. 16 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JUILAKI STRAWTHER, 12 13 14 15 No. 2:18-cv-0932-EFB P Petitioner, v. ORDER AND FINDINGS AND RECOMMENDATIONS MICHAEL BITER, Respondent. 16 17 Petitioner, a state prisoner proceeding without counsel, seeks 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 the conviction for second degree robbery 2 entered against him on December 15, 2009, in the California Superior Court, County of 3 Sacramento, case number 09F05830. ECF No. 1 at 1, 40-41, 50. The court has examined its 4 records, and finds that petitioner challenged the same judgment of conviction in an earlier action. 5 Specifically, in Strawther v. Grounds, No. 2:13-cv-1357-MCE-EFB (E.D. Cal.), the court 6 considered petitioner’s challenge to the same judgment of conviction. See Strawther, ECF No. 26 7 (magistrate judge’s June 24, 2015 findings and recommendations to deny petitioner’s application 8 for a writ of habeas corpus on the merits); ECF No. 30 (district judge’s October 6, 2015 order 9 adopting findings and recommendations and denying petitioner’s application for a writ of habeas 10 corpus). Since petitioner challenges the same judgment now that he previously challenged and 11 which was adjudicated on the merits, the petition now pending is second or 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 19 20 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a United States District Judge to this action. Further, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of jurisdiction. 21 These findings and recommendations are submitted to the United States District Judge 22 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 23 after being served with these findings and recommendations, any party may file written 24 objections with the court and serve a copy on all parties. Such a document should be captioned 25 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 26 shall be served and filed within fourteen days after service of the objections. Failure to file 27 objections within the specified time may waive the right to appeal the District Court’s order. 28 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 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 Section 3 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a 4 final order adverse to the applicant). 5 DATED: April 17, 2019. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3