(HC) Hurtado v. Spearman ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 RICHARD ANTHONY HURTADO, ) Case No.: 1:19-cv-01159-DAD-JLT (HC) ) 12 Petitioner, ) FINDINGS AND RECOMMENDATION TO ) GRANT RESPONDENT’S MOTION TO DISMISS 13 v. ) PETITION ) 14 M.E. SPEARMAN, ) [Doc. 13] 15 Respondent. ) ) [THIRTY DAY OBJECTION DEADLINE] 16 ) 17 On August 27, 2019, Petitioner filed the instant petition for writ of habeas corpus in this Court. 18 (Doc. 1.) Petitioner filed a first amended petition on October 28, 2019. (Doc. 7.) Respondent filed a 19 motion to dismiss on January 6, 2020, arguing that the petition is successive. (Doc. 13.) Petitioner 20 filed his opposition on January 23, 2020. (Doc. 15.) Because the petition is successive, the Court will 21 recommend the petition be DISMISSED. 22 DISCUSSION 23 Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition 24 if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to 25 relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The Advisory 26 Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas corpus, 27 either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after an 28 answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir. 2001). 1 A federal court must dismiss a second or successive petition that raises the same grounds as a 2 prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive petition 3 raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, 4 constitutional right or 2) the factual basis of the claim was not previously discoverable through due 5 diligence, and these new facts establish by clear and convincing evidence that but for the constitutional 6 error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 7 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a second or 8 successive petition meets these requirements. 9 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by this 10 section is filed in the district court, the applicant shall move in the appropriate court of appeals for an 11 order authorizing the district court to consider the application." In other words, Petitioner must obtain 12 leave from the Ninth Circuit before he can file a second or successive petition in district court. See 13 Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or successive 14 petition unless the Court of Appeals has given Petitioner leave to file the petition because a district 15 court lacks subject-matter jurisdiction over a second or successive petition. Burton v. Stewart, 549 16 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). 17 Petitioner challenges his 2004 conviction in the Tulare County Superior Court for child 18 endangerment, spousal abuse, and making a criminal threat. Petitioner has previously sought federal 19 habeas relief in this Court with respect to the same conviction in Hurtado v. Felker, Case No. 1:08-cv- 20 01429-AWI-DLB (dismissed as untimely) and Hurtado v. Gipson, Case No. 1:14-cv-00126-LJO-SMS 21 (dismissed as successive).1 22 The Court finds that the instant petition is “second or successive” under 28 U.S.C. § 2244(b). 23 Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file his 24 successive petition. Therefore, this Court has no jurisdiction to consider Petitioner’s renewed 25 application for relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. at 26 157. 27 28 1 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1 RECOMMENDATION 2 For the foregoing reasons, the Court RECOMMENDS that the petition be DISMISSED as 3 successive. 4 This Findings and Recommendation is submitted to the United States District Court Judge 5 assigned to this case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the 6 Local Rules of Practice for the United States District Court, Eastern District of California. Within 7 thirty days after being served with a copy, Petitioner may file written objections with the Court. Such 8 a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendation.” 9 The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). 10 Petitioner is advised that failure to file objections within the specified time may waive the right to 11 appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 12 13 IT IS SO ORDERED. 14 Dated: February 18, 2020 /s/ Jennifer L. Thurston 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28