(HC) Strain 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 JEREMY D. STRAIN, No. 2:20-cv-1211 AC P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PEOPLD OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. 19 In the instant petition, petitioner challenges his 2009 conviction for aggravated mayhem 20 and assault, which resulted in a sentence of seven years to life. ECF No. 1 at 2. 21 Under 28 U.S.C. § 2244(b)(3)(A), a second or successive application for habeas relief 22 may not be filed in district court without prior authorization by the court of appeals. Felker v. 23 Turpin, 518 U.S. 651, 657 (1996). Prior authorization is a jurisdictional requirement. Burton v. 24 Stewart, 549 U.S. 147, 152-53 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) 25 (once district court has recognized a petition as second or successive pursuant to § 2244(b), it 26 lacks jurisdiction to consider the merits). A petition is successive within the meaning of 28 27 U.S.C. § 2244(b) where it “seeks to add a new ground for relief” or “if it attacks the federal 28 1 court’s previous resolution of a claim on the merits.” Gonzalez v. Crosby, 545 U.S. 524, 532 2 (2005) (emphasis in original). “[A] ‘claim’ as used in § 2244(b) is an asserted federal basis for 3 relief from a state court’s judgment of conviction.” Id. at 530. “Even if a petitioner can 4 demonstrate that he qualifies for one of [the] exceptions [to filing a second or successive 5 petition], he must seek authorization from the court of appeals before filing his new petition with 6 the district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (citing 28 U.S.C. 7 § 2244(b)(3)). 8 The petition indicates (ECF No. 1 at 3), and the court’s records confirm, that petitioner 9 has previously filed an application for a writ of habeas corpus attacking the same conviction and 10 sentence challenged in this case. The previous application was filed by the Clerk of the Court on 11 April 18, 2014, and was denied on the merits on July 27, 2015. Strain v. People of the State of 12 California, No. 2:14-cv-1008 CKD (E.D. Cal.), ECF Nos. 1, 24. This court takes judicial notice 13 of the record in that proceeding. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] 14 court may take judicial notice of its own records in other cases.”). 15 Before petitioner can proceed on his claims, he must submit a request to the United States 16 Court of Appeals for the Ninth Circuit to issue an order authorizing the district court to consider 17 the application and that request must be granted. 28 U.S.C. § 2244(b)(3). Petitioner has not 18 provided any evidence that he has received the required authorization. The undersigned will 19 therefore recommend that this action be dismissed without prejudice to re-filing once petitioner 20 receives authorization to proceed from the Ninth Circuit. 21 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a 22 United States District Judge to this action. 23 IT IS FURTHER RECOMMENDED that this action be dismissed without prejudice as 24 second or successive. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 27 after being served with these findings and recommendations, petitioner may file written 28 objections with the court. The document should be captioned “Objections to Magistrate Judge’s wOAOe COU VV RINE MVOC OPC eT OY VI 1 | Findings and Recommendations.” Petitioner is advised that failure to file objections within the 2 || specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 3 | F.2d 1153 (9th Cir. 1991). 4 | DATED: June 19, 2020 ~ 5 Hthren— Lhar—e_ ALLISON CLAIRE 6 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