(HC) Jolivette v. Gastelo ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL PATRICK JOLIVETTE, No. 2:20-cv-1670-JAM-EFB P 12 Petitioner, 13 v. FINDINGS AND RECOMMENDATIONS 14 JOSIE GASTELO, Warden, 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. wOAOe 2 OU UV □□□ VAIN ER MUO OPI ee AY ee 1 In the present action, petitioner challenges the sentence he is serving pursuant to a 2 || conviction in case number FCR211674, entered against him in the California Superior Court, 3 || County of Solano, in April of 2005. ECF No. 1 at 1. Court records reflect that petitioner 4 || previously challenged this judgment of conviction in this court. See Jolivette v. California, No. 5 || 2:08-cv-0189-GHK (E.D. Cal.). On May 15, 2009, the court denied the petition on the merits. 6 || See id., ECF No. 13. Since petitioner challenges the same judgment now that he previously 7 | challenged and which was adjudicated on the merits, the petition now pending is second or 8 || successive. Petitioner fails to show that the appellate court has authorized this court to consider a 9 || second or successive petition. Therefore, this action must be dismissed for lack of jurisdiction. 10 | See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam). 11 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of 12 | jurisdiction. 13 These findings and recommendations are submitted to the United States District Judge 14 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen days 15 || after being served with these findings and recommendations, any party may file written 16 || objections with the court and serve a copy on all parties. Such a document should be captioned 17 || “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 18 | shall be served and filed within fourteen days after service of the objections. Failure to file 19 || objections within the specified time may waive the right to appeal the District Court’s order. 20 || Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 21 || 1991). In his objections petitioner may address whether a certificate of appealability should issue 22 || in the event he files an appeal of the judgment in this case. See Rule 11, Rules Governing Section 23 || 2254 Cases in the United States District Courts (the district court must issue or deny a certificate 24 || of appealability when it enters a final order adverse to the applicant). 25 | DATED: September 23, 2020. 26 tid, PDEA EDMUND F. BRENNAN 27 UNITED STATES MAGISTRATE JUDGE 28