(HC) Scott v. Covello ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ELMAR K. SCOTT, Case No. 1:20-cv-01297-AWI-EPG-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 13 v. HABEAS CORPUS 14 COVELLO, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. In the instant petition, Petitioner challenges his 2010 Stanislaus 19 County Superior Court convictions. As Petitioner has sought federal habeas relief with respect to 20 the challenged convictions previously, the undersigned recommends that the petition be 21 dismissed pursuant to 28 U.S.C. § 2244(b) as an unauthorized successive petition. 22 I. 23 DISCUSSION 24 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 25 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 26 to file a response, if it “plainly appears from the petition and any attached exhibits that the 27 petitioner is not entitled to relief in the district court.” A federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The 1 court must also dismiss a second or successive petition raising a new ground unless the petitioner 2 can show that (1) the claim rests on a new, retroactive, constitutional right, or (2) the factual 3 basis of the claim was not previously discoverable through due diligence, and these new facts 4 establish by clear and convincing evidence that but for the constitutional error, no reasonable 5 factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. 6 § 2244(b)(2)(A)–(B). However, it is not the district court that decides whether a second or 7 successive petition meets these requirements. 8 Section 2244(b)(3)(A) provides: “Before a second or successive application permitted by 9 this section is filed in the district court, the applicant shall move in the appropriate court of 10 appeals for an order authorizing the district court to consider the application.” In other words, a 11 petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 12 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656–57 (1996). This Court must 13 dismiss any second or successive petition unless the Court of Appeals has given a petitioner 14 leave to file the petition because a district court lacks subject-matter jurisdiction over a second or 15 successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). 16 In the instant petition, Petitioner challenges his 2010 Stanislaus County Superior Court 17 convictions for which he was sentenced to an imprisonment term of thirty-one years and four 18 months. (ECF No. 1 at 1).1 Petitioner previously sought federal habeas relief in this Court with 19 respect to the same convictions. The petition was denied on the merits. See Scott v. Swarthout, 20 No. 1:13-cv-01804-LJO-SMS.2 Therefore, the Court finds that the instant petition is “second or 21 successive” under 28 U.S.C. § 2244(b). 22 As Petitioner has already filed a federal petition for writ of habeas corpus regarding his 23 2010 convictions, he cannot file another petition in this Court regarding the same convictions 24 without first obtaining permission from the United States Court of Appeals for the Ninth Circuit. 25 Here, Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file 26 his successive petition. Therefore, this Court has no jurisdiction to consider Petitioner’s renewed 27 1 Page numbers refer to the ECF page numbers stamped at the top of the page. 2 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 □□□ 4 OU VV □□□ TONNE MMC ee POO EI er OY VM VI 1 | application for relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 US. 2 | at 157. 3 I. 4 RECOMMENDATION 5 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 6 | habeas corpus be DISMISSED. 7 This Findings and Recommendation is submitted to the assigned United States District 8 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 9 | Rules of Practice for the United States District Court, Eastern District of California. Within 10 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 11 | written objections with the court and serve a copy on all parties. Such a document should be 12 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 13 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 14 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 15 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 16 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 17 18 IT IS SO ORDERED. 19| Dated: _ October 6, 2020 [sf hey — 0 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28