(HC) Witzig v. Hill ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY JOSEPH WITZIG, Case No. 1:22-cv-00155-SKO (HC) 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS SUCCESSIVE PETITION FOR 13 v. WRIT OF HABEAS CORPUS 14 RICK HILL, Warden, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 15 Respondent. [TWENTY-ONE DAY OBJECTION 16 DEADLINE] 17 18 On January 28, 2022, Petitioner filed the instant petition for writ of habeas corpus in this 19 Court. Because the petition is successive, the Court will recommend it be DISMISSED. 20 DISCUSSION 21 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 22 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 23 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 24 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). 25 A petition for habeas corpus should not be dismissed without leave to amend unless it appears 26 that no tenable claim for relief can be pleaded were such leave granted. Jarvis v. Nelson, 440 27 F.2d 13, 14 (9th Cir. 1971). 1 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 2 petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, 3 retroactive, constitutional right or 2) the factual basis of the claim was not previously 4 discoverable through due diligence, and these new facts establish by clear and convincing 5 evidence that but for the constitutional error, no reasonable factfinder would have found the 6 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the 7 district court that decides whether a second or 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, 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, 656-657 (1996). This Court must 13 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave 14 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, 152 (2007); Cooper v. Calderon, 274 F.3d 16 1270, 1274 (9th Cir. 2001). 17 In this case, Petitioner challenges his 2009 conviction in the Tulare County Superior 18 Court of attempted murder, assault with a firearm, and shooting at an occupied motor vehicle. 19 He raises claims of ineffective assistance of counsel and prosecutorial misconduct. Petitioner 20 previously sought federal habeas relief in this Court with respect to the same conviction. See 21 Witzig v. Hill, Case No. 1:11-cv-01825-MJS (HC). In the prior action, the petition was denied 22 on the merits. Id. 23 The Court finds that the instant petition is “second or successive” under 28 U.S.C. § 24 2244(b). See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding “dismissal of a 25 first habeas petition for untimeliness presents a ‘permanent and incurable’ bar to federal review 26 of the underlying claims,” and thus renders subsequent petitions “second or successive”). 27 Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file his 1 application for relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. 2 at 157. 3 ORDER 4 Accordingly, the Clerk of Court is DIRECTED to assign a District Judge to this case. 5 RECOMMENDATION 6 For the foregoing reasons, the Court HEREBY RECOMMENDS that the petition be 7 DISMISSED as successive. 8 This Findings and Recommendation is submitted to the United States District Court Judge 9 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 10 of the Local Rules of Practice for the United States District Court, Eastern District of California. 11 Within twenty-one days after being served with a copy, Petitioner may file written objections 12 with the Court. Such a document should be captioned “Objections to Magistrate Judge’s 13 Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling 14 pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections within 15 the specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 16 F.2d 1153 (9th Cir. 1991). 17 IT IS SO ORDERED. 18 19 Dated: February 9, 2022 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27