(HC) Calderon v. Fisher ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOSE GUADALUPE CALDERON, No. 2:20-cv-0505-EFB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 R. FISHER, Jr., 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. 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 the appellate court, the district court is without jurisdiction to consider a second or successive 28 petition. See Burton, 549 U.S. 147. 1 In the present action, petitioner challenges the sentence he is serving pursuant to a 2 conviction in case number 03F00297, entered against him in the California Superior Court, 3 County of Sacramento, on December 16, 2003. ECF No. 1 at 1. Court records reflect that 4 petitioner previously challenged this judgment of conviction in this court. See Calderon v. 5 Scribner, No. 2:07-cv-0716-JCC (E.D. Cal.). On June 18, 2009, the court denied the petition on 6 the merits. See id., ECF No. 19. Since petitioner challenges the same judgment now that he 7 previously challenged and which was adjudicated on the merits, the petition now pending is 8 second or successive. Petitioner fails to show that the appellate court has authorized this court to 9 consider a second or successive petition. Therefore, this action must be dismissed for lack of 10 jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) 11 (per curiam). 12 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court shall randomly 13 assign a United States District Judge to this case. 14 Further, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of 15 jurisdiction. 16 These findings and recommendations are submitted to the United States District Judge 17 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 18 after being served with these findings and recommendations, any party may file written 19 objections with the court and serve a copy on all parties. Such a document should be captioned 20 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 21 shall be served and filed within fourteen days after service of the objections. Failure to file 22 objections within the specified time may waive the right to appeal the District Court’s order. 23 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 24 1991). In his objections petitioner may address whether a certificate of appealability should issue 25 in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 26 ///// 27 ///// 28 ///// 1 || 2254 Cases in the United States District Courts (the district court must issue or deny a certificate 2 || of appealability when it enters a final order adverse to the applicant). 3 | DATED: April 7, 2020. tid, PDEA 5 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28