(HC) Stewart v. Macomber ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 GREGORY W. STEWART, No. 1:20-cv-00969-NONE-SAB-HC 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATION, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS, DIRECTING CLERK OF COURT 14 J. MACOMBER, TO ASSIGN DISTRICT JUDGE AND CLOSE CASE, AND DECLINING TO ISSUE A 15 Respondent. CERTIFICATE OF APPEALABILITY 16 (Doc. No. 6) 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. He alleges he did not receive a fair trial; evidence in his case was 20 obtained as the result of an unconstitutional search; he received ineffective assistance from his 21 counsel; and there was insufficient evidence presented at his trial to find him guilty. (See Doc. 22 No. 1.) 23 On July 22, 2020, the assigned magistrate judge issued findings and recommendation that 24 recommended dismissing the petition as an unauthorized successive petition. (Doc. No. 6.) This 25 recommendation was based on the finding that petition has filed numerous other petitions seeking 26 federal habeas relief with respect to this same state court conviction. (Id. (listing approximately 27 twenty-three separate petitions).) Before filing a second or successive petition, petitioner was 28 required to obtain leave of the Ninth Circuit before proceeding. (Id. (citing 28 U.S.C. § 1 2244(b)(3)).) The findings and recommendations note that petitioner’s first habeas petition, filed 2 in 2000, was dismissed as untimely; however, filing a petition that fails to comply with the statute 3 of limitations in the Antiterrorism and Effective Death Penalty Act (“AEDPA”) renders 4 subsequently filed petitions second or successive under AEDPA. (Id. (citing McNabb v. Yates, 5 576 F.3d 1028, 1030 (9th Cir. 2009)).) Petitioner has not demonstrated that he has received 6 authorization from the Ninth Circuit to file a second or successive petition in this matter. (Id.) 7 The findings and recommendation were served on petitioner and contained notice that any 8 objections were to be filed within thirty (30) days of the date of service of the findings and 9 recommendation. Petitioner filed timely objections. (Doc. No. 8.) 10 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a 11 de novo review of the case. Having carefully reviewed the entire file, including petitioner’s 12 objections, the court concludes that those findings and recommendation to be supported by the 13 record and proper analysis. 14 In his objections, petitioner appears to request a review of the case numbers of his various 15 past Ninth Circuit appeals because a court order referenced a case number that “does not exist” in 16 petitioner’s records. (Doc. No. 8 at 4.) Petitioner argues that if an illegal appeal case number 17 exists, “the trial court is entitled to reconsider all court sentencing and choices.” (Id. at 5.) 18 Whether there was some sort of clerical error regarding petitioner’s appellate case numbers in the 19 Ninth Circuit is irrelevant to the issue before this court. The instant federal habeas petition is 20 successive, and petitioner has not received authorization from the Ninth Circuit to file a 21 successive petition. Accordingly, the petition must be dismissed. 22 Having found that petitioner is not entitled to habeas relief, the court now turns to whether 23 a certificate of appealability should issue. A petitioner seeking a writ of habeas corpus has no 24 absolute entitlement to appeal a district court’s denial of his petition, and an appeal is only 25 allowed in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. 26 § 2253. Where, as here, the court denies habeas relief on procedural grounds without reaching 27 the underlying constitutional claims, the court should issue a certificate of appealability “if jurists 28 of reason would find it debatable whether the petition states a valid claim of the denial of a woe VV YM MARE SEA MVE PIO Ie er OY VM VI 1 | constitutional right and that jurists of reason would find it debatable whether the district court was 2 | correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain 3 | procedural bar is present and the district court is correct to invoke it to dispose of the case, a 4 | reasonable jurist could not conclude either that the district court erred in dismissing the petition or 5 | that the petitioner should be allowed to proceed further.” Jd. 6 In the present case, the court finds that reasonable jurists would not find the court’s 7 | determination that the petition should be dismissed debatable or wrong, or that petitioner should 8 | be allowed to proceed further. Therefore, the court declines to issue a certificate of appealability. 9 Accordingly: 10 1. The findings and recommendation issued on July 20, 2020 (Doc. No. 6) are adopted; 11 2. The petition for writ of habeas corpus is dismissed as an unauthorized second or 12 successive petition; 13 3. The Clerk of Court is directed to assign a district judge to this case for the purpose of 14 closing the case and then to close the case; and 15 4. The court declines to issue a certificate of appealability. 16 | IT IS SO ORDERED. me □ " Dated: _ September 2, 2020 L yA 18 UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28