(HC) Hammond v. Warden ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DELVON HAMMOND, No. 2:19-cv-1578-EFB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 WARDEN, 15 Respondent. 16 17 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 18 28 U.S.C. § 2254.1 The court has reviewed the petition as required by Rule 4 of the Rules 19 Governing Section 2254 Proceedings and finds that the petition is second or successive and must 20 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 1 Petitioner also seeks leave to proceed in forma pauperis (ECF No. 3). That request is 28 granted. 1 the appellate court, the district court is without jurisdiction to consider a second or successive 2 petition. See Burton, 549 U.S. 147. 3 In the present action, petitioner challenges his conviction for forcible lewd act upon a 4 child under fourteen years of age entered against him in the California Superior Court, County of 5 Solano, case number FCR295413. ECF No. 1 at 2. Court records reflect that petitioner 6 previously challenged this judgment of conviction in this court. See Hammond v. Lizarraga, No. 7 2:17-cv-2189-TLN-KJN (E.D. Cal.). On September 17, 2018, the court denied the petition on the 8 merits. Id., ECF Nos. 30, 31. Since petitioner challenges the same judgment now that he 9 previously challenged and which was adjudicated on the merits, the petition now pending is 10 second or successive. Petitioner fails to show that the appellate court has authorized this court to 11 consider a second or successive petition. Therefore, this action must be dismissed for lack of 12 jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) 13 (per curiam). 14 Accordingly, IT IS HEREBY ORDERED that: 15 1. Petitioner’s application for leave to proceed in forma pauperis (ECF No. 3) is granted; 16 and 17 2. The Clerk of the Court shall randomly assign a United States District Judge to this 18 case. 19 Further, IT IS RECOMMENDED that this action be dismissed for lack of jurisdiction. 20 These findings and recommendations are submitted to the United States District Judge 21 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 22 after being served with these findings and recommendations, any party may file written 23 objections with the court and serve a copy on all parties. Such a document should be captioned 24 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 25 shall be served and filed within fourteen days after service of the objections. Failure to file 26 objections within the specified time may waive the right to appeal the District Court’s order. 27 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 28 1991). In his objections petitioner may address whether a certificate of appealability should issue 1 | in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 2 || Section 2254 Cases in the United States District Courts (the district court must issue or deny a 3 || certificate of appealability when it enters a final order adverse to the applicant). 4 | DATED: March 19, 2020. tid, PDEA 6 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28