(HC) Jackson v. Pfeiffer ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 DESHAWN JACKSON, Case No. 1:21-cv-00250-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS SUCCESSIVE PETITION FOR 13 v. WRIT OF HABEAS CORPUS 14 CHRISTIAN PFEIFFER, Warden, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 15 Respondent. [TWENTY-ONE DAY OBJECTION 16 DEADLINE] 17 18 Petitioner is a state prisoner proceeding pro se and in forma pauperis with a petition for 19 writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 On February 23, 2021, Petitioner filed the instant petition for writ of habeas corpus in this 21 Court. Because the petition is successive, the Court will recommend it be DISMISSED. 22 DISCUSSION 23 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 24 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 25 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 26 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 27 A petition for habeas corpus should not be dismissed without leave to amend unless it appears 1 F.2d 13, 14 (9th Cir. 1971). 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, 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, 656-657 (1996). This Court must 15 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave 16 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, 152 (2007); Cooper v. Calderon, 274 F.3d 18 1270, 1274 (9th Cir. 2001). 19 In this case, Petitioner challenges his 1994 conviction in the Fresno County Superior 20 Court for second degree murder. He raises claims of actual innocence, prosecutorial misconduct, 21 cruel and unusual punishment, and trial court abuse of discretion. Petitioner previously sought 22 federal habeas relief in this Court with respect to the same conviction. See Jackson v. Walker, 23 Case No. 1:08-cv-00949-SMS (dismissed as untimely); Jackson v. Biter, Case No. 1:14-cv- 24 01213-SAB (dismissed as successive). 25 The Court finds that the instant petition is “second or successive” under 28 U.S.C. § 26 2244(b). See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding “dismissal of a 27 first habeas petition for untimeliness presents a ‘permanent and incurable’ bar to federal review 1 Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file his 2 successive petition. Therefore, this Court has no jurisdiction to consider Petitioner’s renewed 3 application for relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. 4 at 157. 5 ORDER 6 Accordingly, the Clerk of Court is DIRECTED to assign a District Judge to this case. 7 RECOMMENDATION 8 For the foregoing reasons, the Court HEREBY RECOMMENDS that the petition be 9 DISMISSED as successive. 10 This Findings and Recommendation is submitted to the United States District Court Judge 11 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 12 of the Local Rules of Practice for the United States District Court, Eastern District of California. 13 Within twenty-one (21) days after being served with a copy, Petitioner may file written objections 14 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s 15 Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling 16 pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within 17 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 18 F.2d 1153 (9th Cir. 1991). 19 IT IS SO ORDERED. 20 Sheila K. Oberto 21 Dated: February 25, 2021 /s/ . UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 27