(HC) Sharonoff v. People of the State of California ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH ALLEN SHARONOFF, No. 2:19-cv-2354-EFB P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 18 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 19 28 U.S.C. § 2254.1 The court has reviewed the petition as required by Rule 4 of the Rules 20 Governing Section 2254 Proceedings and finds that the petition is second or successive and must 21 therefore be dismissed. 22 A petition is second or successive if it makes “claims contesting the same custody 23 imposed by the same judgment of a state court” that the petitioner previously challenged, and on 24 which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); 25 see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive 26 petition in a district court, a petitioner must obtain from the appellate court “an order authorizing 27 1 Petitioner also seeks leave to proceed in forma pauperis (ECF No. 2). That request is 28 granted. 1 the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Without an order from 2 the appellate court, the district court is without jurisdiction to consider a second or successive 3 petition. See Burton, 549 U.S. 147. 4 In the present action, petitioner challenges the sentence he is serving pursuant to a 5 conviction in case number P10CRF0036, entered against him in the California Superior Court, 6 County of El Dorado, on September 10, 2010. ECF No. 1 at 1. Court records reflect that 7 petitioner previously challenged this judgment of conviction in this court. See Sharonoff v. 8 Warden, No. 2:13-cv-0794-TLN-AC (E.D. Cal.). On March 9, 2018, the court denied the petition 9 on the merits. See id., ECF Nos. 84, 93. Since petitioner challenges the same judgment now that 10 he previously challenged and which was adjudicated on the merits, the petition now pending is 11 second or successive. Petitioner fails to show that the appellate court has authorized this court to 12 consider a second or successive petition. Therefore, this action must be dismissed for lack of 13 jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) 14 (per curiam). 15 Accordingly, IT IS HEREBY ORDERED that: 16 1. Petitioner’s application for leave to proceed in forma pauperis (ECF No. 2) is granted; 17 and 18 2. The Clerk of the Court shall randomly assign a United States District Judge to this 19 case. 20 Further, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of 21 jurisdiction. 22 These findings and recommendations are submitted to the United States District Judge 23 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 24 after being served with these findings and recommendations, any party may file written 25 objections with the court and serve a copy on all parties. Such a document should be captioned 26 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 27 shall be served and filed within fourteen days after service of the objections. Failure to file 28 objections within the specified time may waive the right to appeal the District Court’s order. 1 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 2 | 1991). In his objections petitioner may address whether a certificate of appealability should issue 3 || in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 4 | 2254 Cases in the United States District Courts (the district court must issue or deny a certificate 5 || of appealability when it enters a final order adverse to the applicant). 6 | DATED: April 13, 2020. 7 tid, PDEA 8 EDMUND F. BRENNAN UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28