(HC) Chatman v. State of California ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 RICKEY LEE CHATMAN, JR., Case No. 1:19-cv-01446-LJO-SAB-HC 11 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, DENYING 12 v. PETITIONER’S MOTION TO STAY, DISMISSING PETITION FOR WRIT OF 13 STATE OF CALIFORNIA, HABEAS CORPUS, DIRECTING CLERK OF COURT TO CLOSE CASE, AND 14 Respondent. DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 15 (ECF Nos. 5, 8) 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. On October 28, 2019,1 the Magistrate Judge issued Findings and 19 Recommendation that recommended dismissing the petition as an unauthorized successive 20 petition. (ECF No. 5). Petitioner filed timely objections. (ECF No. 7). 21 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), this Court has conducted 22 a de novo review of the case. Having carefully reviewed the entire file, including Petitioner’s 23 objections, the Court concludes that the Findings and Recommendation is supported by the 24 record and proper analysis. 25 In his objections, Petitioner argues that the instant petition should not be dismissed 26 because he “is clearly not raising the same grounds as any prior petition.” (ECF No. 7 at 1).2 As 27 1 The Findings and Recommendation was signed on October 25, 2019 and entered on the docket on October 28, 2019. 1 noted in the Findings and Recommendation, a petitioner may file a second or successive petition 2 raising a new ground if it meets the requirements set forth in 28 U.S.C. § 2244(b)(2)(A)–(B). 3 However, it is not the district court that decides whether a second or successive petition meets 4 these requirements. Rather, “[b]efore a second or successive application permitted by this section 5 is filed in the district court, the applicant shall move in the appropriate court of appeals for an 6 order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A) 7 (emphasis added). As Petitioner makes no showing that he has obtained prior leave from the 8 Ninth Circuit to file a successive petition, this Court has no jurisdiction to consider Petitioner’s 9 renewed application for relief under 28 U.S.C. § 2254 and must dismiss the petition. Burton v. 10 Stewart, 549 U.S. 147, 157 (2007). 11 Petitioner also moves to stay the instant proceeding “until such time that Petitioner 12 returns to the State Court to present New Evidence and returns back to this Court.” (ECF No. 8 at 13 1). The Court finds that stay and abeyance would not be appropriate.3 As set forth above and in 14 the Findings and Recommendation, dismissal is warranted because the petition is an 15 unauthorized successive petition. The issue of exhaustion was not a basis for the Magistrate 16 Judge’s recommendation of dismissal. In the event the Ninth Circuit grants Petitioner leave to 17 file a successive § 2254 petition, Petitioner can return to the district court and file his habeas 18 petition. 19 A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a 20 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 21 Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003). The controlling statute in determining 22 whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows: 23 (a) In a habeas corpus proceeding or a proceeding under section 2255 before a district judge, the final order shall be subject to 24 review, on appeal, by the court of appeals for the circuit in which the proceeding is held. 25 (b) There shall be no right of appeal from a final order in a 26 proceeding to test the validity of a warrant to remove to another district or place for commitment or trial a person charged with a 27 1 criminal offense against the United States, or to test the validity of such person’s detention pending removal proceedings. 2 (c) (1) Unless a circuit justice or judge issues a certificate of 3 appealability, an appeal may not be taken to the court of appeals from– 4 (A) the final order in a habeas corpus proceeding in which 5 the detention complained of arises out of process issued by a State court; or 6 (B) the final order in a proceeding under section 2255. 7 (2) A certificate of appealability may issue under paragraph (1) 8 only if the applicant has made a substantial showing of the denial of a constitutional right. 9 (3) The certificate of appealability under paragraph (1) shall 10 indicate which specific issue or issues satisfy the showing required by paragraph (2). 11 12 28 U.S.C. § 2253. 13 If a court denies habeas relief on procedural grounds without reaching the underlying 14 constitutional claims, the court should issue a certificate of appealability “if jurists of reason 15 would find it debatable whether the petition states a valid claim of the denial of a constitutional 16 right and that jurists of reason would find it debatable whether the district court was correct in its 17 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar 18 is present and the district court is correct to invoke it to dispose of the case, a reasonable jurist 19 could not conclude either that the district court erred in dismissing the petition or that the 20 petitioner should be allowed to proceed further.” Id. 21 In the present case, reasonable jurists would not find the Court’s determination that 22 Petitioner’s habeas petition should be dismissed debatable or wrong, or that Petitioner should be 23 allowed to proceed further. Therefore, the Court declines to issue a certificate of appealability. 24 Accordingly, IT IS HEREBY ORDERED that: 25 1. The Findings and Recommendation issued on October 28, 2019 (ECF No. 5) is 26 ADOPTED IN FULL; 27 2. Petitioner’s motion to stay (ECF No. 8) is DENIED; 3. The petition for writ of habeas corpus is DISMISSED; 1 4. The Clerk of Court is DIRECTED to CLOSE the case; and 2 5. The Court DECLINES to issue a certificate of appealability. 3 4 IT IS SO ORDERED. Dp 5 | Dated: _ January 17, 2020 : : _-SENIOR DISTRICT JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28