(HC) Jones v. Christoffersen ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 CHARLES JONES, Case No. 1:18-cv-01309-JDP (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS THAT COURT DISMISS UNAUTHORIZED 13 v. SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF 14 ERIC L. CHRISTOFFERSEN, JURISDICTION AND DENY PETITIONER’S MOTION FOR STAY AND ABEYANCE 15 Respondent. ECF Nos. 1, 2 16 ORDER DIRECTING CLERK OF COURT TO 17 ASSIGN CASE TO DISTRICT JUDGE 18 Petitioner Charles Jones, a state prisoner without counsel, has filed a successive petition 19 for a writ of habeas corpus under 28 U.S.C. § 2254. The matter is before the court for 20 preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. Under Rule 4, a 21 district court must dismiss a habeas petition if it “plainly appears” that the petitioner is not 22 entitled to relief. Petitioner has unsuccessfully pursued at least two Section 2254 petitions in the 23 past, challenging the same state court judgment from 1993. See Jones v. Unknown, No. 1:13-cv- 24 918-JLT, ECF No. 19 (E.D. Cal. Dec. 12, 2013); Jones v. People, No. 1:12-cv-01938-MJS, 25 ECF No. 6 (E.D. Cal. Mar. 7, 2013). He has not obtained the authorization from the Ninth Circuit 26 to pursue a second or successive petition, so we lack jurisdiction over this case. We recommend 27 that the court dismiss the petition for lack of jurisdiction. 28 1 I. Second or Successive Petition 2 A federal court will not consider a second or successive habeas corpus petition unless the 3 petitioner shows that (1) his claim relies on a new rule of constitutional law, made retroactive by 4 the Supreme Court, that was previously unavailable or (2) the factual predicate for the claim 5 could not have been discovered previously through the exercise of due diligence. See 28 U.S.C. 6 § 2244(b)(2). A district court may not decide whether a second or successive petition meets these 7 requirements; the petitioner must obtain the authorization from the appropriate court of appeals 8 before filing the petition. See 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 147, 157 9 (2007). The authorization from the appropriate court of appeals is a jurisdictional requirement. 10 See Burton, 549 U.S. at 157. 11 Here, petitioner contends that two cases from the California Supreme Court show that his 12 due process rights were violated. He relies on People v. Banks, 61 Cal. 4th 788 (2015), and 13 People v. Chiu, 59 Cal. 4th 155 (2014). See ECF No. 1 at 16, 37. Because these cases were 14 decided after his conviction, petitioner could not rely on them as the basis of due process claims 15 at the time of his criminal trial. However, before pursuing a successive habeas corpus petition, he 16 must first obtain authorization to do so from the Ninth Circuit. Because the Ninth Circuit has not 17 authorized petitioner to pursue a second or successive petition, we lack jurisdiction over this case. 18 See Burton, 549 U.S. at 157. We therefore recommend dismissing this case for lack of 19 jurisdiction. 20 II. Petitioner’s Motion for Stay and Abeyance 21 Petitioner moves to stay the case, stating that he needs to obtain necessary documents 22 before proceeding further in this case and that he had ineffective assistance of counsel on direct 23 appeal. ECF No. 2. Because the court must dismiss the case for lack of jurisdiction, petitioner’s 24 motion for stay and abeyance is moot. We recommend that the court deny the motion. 25 III. Certificate of Appealability 26 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 27 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 28 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 1 requires a district court to issue or deny a certificate of appealability when entering a final order 2 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 3 1268, 1270 (9th Cir. 1997). Where, as here, the court denies habeas relief on procedural grounds 4 without reaching the underlying constitutional claims, the court should issue a certificate of 5 appealability “if jurists of reason would find it debatable whether the petition states a valid claim 6 of the denial of a constitutional right and that jurists of reason would find it debatable whether the 7 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 8 “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of 9 the case, a reasonable jurist could not conclude either that the district court erred in dismissing the 10 petition or that the petitioner should be allowed to proceed further.” Id. 11 Here, reasonable jurists would not find our conclusion debatable or conclude that 12 petitioner should proceed further. Thus, the court should decline to issue a certificate of 13 appealability. 14 IV. Order 15 The clerk of court is directed to assign this case to a district judge who will review the 16 following findings and recommendations. 17 V. Findings and recommendations 18 We recommend that the court dismiss the petition, ECF No. 1, for lack of jurisdiction, 19 deny petitioner’s motion for stay and abeyance, ECF No. 2, as moot, and decline to issue a 20 certificate of appealability. 21 We submit the findings and recommendations to the U.S. District Court Judge who will be 22 assigned to the case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice 23 for the United States District Court, Eastern District of California. Within fourteen days of the 24 service of the findings and recommendations, petitioner may file written objections to the 25 findings and recommendations with the court and serve a copy on all parties. That document 26 must be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 27 assigned District Judge will then review the findings and recommendations under 28 U.S.C. 28 § 636(b)(1)(C). 1 > IT IS SO ORDERED. ° zg : —N prssann — Dated: _ August 23, 2019 4 UNI STATES MAGISTRATE JUDGE 5 6 7 No. 202 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28