(HC) Wallace v. Gastelo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GEORGE WALLACE, No. 2:19-cv-2224-TLN-EFB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 GASTELO, 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. 2). 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 murder conviction entered against him in 4 the California Superior Court, County of Sacramento, on December 10, 2010. ECF No. 1 at 1. 5 Court records reflect that petitioner previously challenged this judgment of conviction in this 6 court. See Wallace v. Barnes, No. 2:14-cv-157-MCE-EFB (E.D. Cal.). On December 12, 2017, 7 the court denied the petition on the merits. See id., ECF Nos. 86, 93, 94. Since petitioner 8 challenges the same judgment now that he previously challenged and which was adjudicated on 9 the merits, the petition now pending is second or successive. Petitioner fails to show that the 10 appellate court has authorized this court to consider a second or successive petition. Therefore, 11 this action must be dismissed for lack of jurisdiction. See Burton, 549 U.S. 147; Cooper v. 12 Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam). 13 Accordingly, IT IS HEREBY ORDERED that petitioner’s application for leave to proceed 14 in forma pauperis (ECF No. 2) is granted. 15 Further, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of 16 jurisdiction. 17 These findings and recommendations are submitted to the United States District Judge 18 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 19 after being served with these findings and recommendations, any party may file written 20 objections with the court and serve a copy on all parties. Such a document should be captioned 21 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 22 shall be served and filed within fourteen days after service of the objections. Failure to file 23 objections within the specified time may waive the right to appeal the District Court’s order. 24 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 25 1991). In his objections petitioner may address whether a certificate of appealability should issue 26 in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 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 13, 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