(HC) Wright v. Gastello ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 DARRELL WRIGHT, Case No. 1:20-cv-01099-EPG-HC 11 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 12 v. HABEAS CORPUS 13 J. GASTELLO, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT COURT JUDGE 14 Respondent. 15 16 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 17 pursuant to 28 U.S.C. § 2254. In the instant petition, Petitioner challenges his 1996 Fresno 18 County Superior Court conviction and sentence for attempted murder. As Petitioner previously 19 sought federal habeas corpus relief with respect to the challenged conviction, the undersigned 20 recommends that the petition be dismissed. To the extent that the petition challenges a separate 21 judgment denying relief pursuant to Senate Bill 260 and 261, the undersigned recommends that 22 the petition be dismissed without prejudice for failure to exhaust state court remedies. 23 I. 24 DISCUSSION 25 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 26 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 27 to file a response, if it “plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court.” 1 A. Second or Successive Petition 2 A federal court must dismiss a second or successive petition that raises the same grounds 3 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 4 petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, 5 retroactive, constitutional right, or (2) the factual basis of the claim was not previously 6 discoverable through due diligence, and these new facts establish by clear and convincing 7 evidence that but for the constitutional error, no reasonable factfinder would have found the 8 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)–(B). However, it is not the 9 district court that decides whether a second or successive petition meets these requirements. 10 Section 2244(b)(3)(A) provides: “Before a second or successive application permitted by 11 this section is filed in the district court, the applicant shall move in the appropriate court of 12 appeals for an order authorizing the district court to consider the application.” In other words, a 13 petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 14 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656–57 (1996). This Court must 15 dismiss any second or successive petition unless the Court of Appeals has given a petitioner 16 leave to file the petition because a district court lacks subject-matter jurisdiction over a second or 17 successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). 18 Petitioner appears to assert in Ground One that he is entitled to some relief pursuant to 19 Senate Bill (“SB”) 260 and 261, which were passed after Petitioner’s conviction and would 20 “open the door to revealing new circumstances which could benefit the petitioner in receiving 21 due process of law.” (ECF No. 1 at 9).1 In Ground Two, Petitioner asserts that he neither 22 received notice of nor had the opportunity to defend against the “new charge” of premeditation. 23 (Id.). 24 Here, Petitioner challenges his 1996 Fresno County Superior Court conviction and 25 sentence for attempted murder. Petitioner previously sought federal habeas relief in this Court 26 with respect to the same conviction. See Wright v. Kirkland, No. 1:06-cv-01498-AWI-SMS 27 (dismissed as untimely); Wright v. Ascuncion, No. 1:16-cv-01086-AWI-MJS (dismissed as 1 successive).2 Accordingly, the Court finds that the instant petition is “second or successive” 2 under 28 U.S.C. § 2244(b). See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding 3 “dismissal of a first habeas petition for untimeliness presents a ‘permanent and incurable’ bar to 4 federal review of the underlying claims,” and thus renders subsequent petitions “second or 5 successive”). 6 As Petitioner has already filed federal petitions for writ of habeas corpus regarding his 7 1996 Fresno County Superior Court conviction and sentence for attempted murder, Petitioner 8 cannot file another petition in this Court regarding the same conviction and sentence without first 9 obtaining permission from the United States Court of Appeals for the Ninth Circuit. Here, 10 Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file his 11 successive petition. Therefore, this Court has no jurisdiction to consider Petitioner’s renewed 12 application for relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. 13 at 157. 14 B. Exhaustion 15 A petitioner in state custody who is proceeding with a petition for writ of habeas corpus 16 must exhaust state judicial remedies. 28 U.S.C. § 2254(b)(1). The exhaustion doctrine is based 17 on comity to the state court and gives the state court the initial opportunity to correct the state’s 18 alleged constitutional deprivations. Coleman v. Thompson, 501 U.S. 722, 731 (1991); Rose v. 19 Lundy, 455 U.S. 509, 518 (1982). A petitioner can satisfy the exhaustion requirement by 20 providing the highest state court with a full and fair opportunity to consider each claim before 21 presenting it to the federal court. O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Duncan v. 22 Henry, 513 U.S. 364, 365 (1995); Picard v. Connor, 404 U.S. 270, 276 (1971). 23 To the extent that Ground One of the petition can be construed as a challenge to a 24 separate judgment or order denying relief under SB 260 and 261,3 the Court finds the claim is 25 unexhausted. The petition states that Ground One was presented to the Fresno County Superior 26 2 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 27 (9th Cir. 1980). 3 “Habeas petitions that are filed second-in-time are not necessarily second or successive,” if, for example, the wOoOe LYNN NS OME IO OPO EIEN PAY OT Mt 1 | Court and was not raised in a petition to the California Supreme Court. (ECF No. | at 3—5). If 2 | Petitioner has not sought relief in the California Supreme Court for the claim that he raises in 3 | Ground One, the Court cannot proceed to the merits of that claim. 28 U.S.C. § 2254(b)(1). 4 I. 5 RECOMMENDATION & ORDER 6 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 7 | habeas corpus be DISMISSED as an unauthorized successive petition and without prejudice to 8 | refiling Petitioner’s SB 260 and 261 claims after exhausting state court remedies. 9 Further, the Court DIRECTS the Clerk of Court to assign a District Court Judge to the 10 | present matter. 11 This Findings and Recommendation is submitted to the assigned United States District 12 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 13 | Rules of Practice for the United States District Court, Eastern District of California. Within 14 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 15 | written objections with the court and serve a copy on all parties. Such a document should be 16 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 17 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 18 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 19 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 20 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 IT IS SO ORDERED. 23| Dated: _ August 31, 2020 [see ey UNITED STATES MAGISTRATE JUDGE 25 26 27 28