(HC) White v. Fresno Superior Court ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ADRIAN JOE WHITE, Case No. 1:21-cv-01644-SAB-HC 12 Petitioner, FINDINGS AND RECOMMENDATION RECOMMENDING DISMISSAL OF 13 v. PETITION FOR WRIT OF HABEAS CORPUS 14 FRESNO SUPERIOR COURT, ORDER DIRECTING CLERK OF COURT 15 Respondent. TO RANDOMLY ASSIGN DISTRICT JUDGE 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. 19 I. 20 DISCUSSION 21 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 22 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 23 to file a response, if it “plainly appears from the petition and any attached exhibits that the 24 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 25 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 26 A federal court must dismiss a second or successive petition that raises the same grounds 27 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, 1 retroactive, constitutional right or (2) the factual basis of the claim was not previously 2 discoverable through due diligence, and these new facts establish by clear and convincing 3 evidence that but for the constitutional error, no reasonable factfinder would have found the 4 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)–(B). 5 However, it is not the district court that decides whether a second or successive petition 6 meets these requirements. Section 2244(b)(3)(A) provides: “Before a second or successive 7 application permitted by this section is filed in the district court, the applicant shall move in the 8 appropriate court of appeals for an order authorizing the district court to consider the 9 application.” In other words, Petitioner must obtain leave from the Ninth Circuit before he can 10 file a second or successive petition in the district court. See Felker v. Turpin, 518 U.S. 651, 656– 11 657 (1996). This Court must dismiss any second or successive petition unless the Court of 12 Appeals has given Petitioner leave to file the petition because a district court lacks subject-matter 13 jurisdiction over a second or successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). 14 In the instant petition, Petitioner challenges his 2006 convictions in the Fresno County 15 Superior Court for forcible rape, sexual penetration by force, and forcible oral copulation. (ECF 16 No. 1 at 1).1 Petitioner previously filed a federal habeas petition in this Court challenging the 17 same convictions, and that petition was denied on the merits. See White v. Clark, No. 1:09-cv- 18 00130-AWI-JMD.2 The Court finds that the instant petition is “second or successive” under 19 § 2244(b). Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit 20 to file this petition. As Petitioner has not obtained prior leave from the Ninth Circuit to file this 21 successive petition, this Court has no jurisdiction to consider Petitioner’s renewed application for 22 relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. at 157. 23 II. 24 RECOMMENDATION & ORDER 25 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 26 habeas corpus be DISMISSED as successive. 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 1 Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 2 | Judge. 3 This Findings and Recommendation is submitted to the United States District Court 4 | Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 5 | of the Local Rules of Practice for the United States District Court, Eastern District of California. 6 | Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may 7 | file written objections with the Court and serve a copy on all parties. Such a document should be 8 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 9 | District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. 10 | § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may 11 | result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) 12 | (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 13 14 IT IS SO ORDERED. DAM Le 15 | Dated: _November 30, 2021 _ ef 16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28