(HC) Dunbar v. Superior Court of California, County of Sacramento ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 EDDIE DUNBAR a/k/a ALAMIN No. 2:21-cv-01022 WBS GGH P SAMAD, 12 Petitioner, 13 FINDINGS AND RECOMMENDATIONS v. 14 SUPERIOR COURT OF CALIFORNIA 15 COUNTY OF SACRAMENTO, 16 Respondent. 17 18 Petitioner, a state prisoner proceeding pro se, has filed an amended petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. ECF No. 9. The matter was referred to the United 20 States Magistrate Judge pursuant to 28 U.S.C. § 626(b)(1) and Local Rule 302(c). 21 Petitioner challenges a state court’s denial of his 1999 conviction in the Sacramento 22 County Superior Court for transportation of a controlled substance and possession of a controlled 23 substance based on a lack of jurisdiction. ECF No. 9. The court’s records reveal that petitioner 24 has previously filed an application for a writ of habeas corpus attacking the original conviction 25 and sentence challenged in this case. The previous application was filed on June 21, 2004 and 26 //// 27 //// 28 //// 1 dismissed as untimely on August 15, 2005. See Dunbar v. Schribner, et. al, 2:04-cv-01176-GEB- 2 PAN. Judgment was entered on November 3, 2005. Dunbar v. Schribner, et. al, 2:04-cv-01176- 3 GEB-PAN (ECF No. 27). The appeal therefrom was affirmed on September 15, 2008. Dunbar v. 4 Schribner, et. al, 2:04-cv-01176-GEB-PAN (ECF Nos. 36, 37). 5 It appears from the instant petition that petitioner sought some type of “extra” collateral 6 review in state court years afterwards based on the asserted lack of initial jurisdiction of the state 7 court to convict him. Petitioner fashions this petition as a challenge to the latter state court, 8 collateral review, final judgment. ECF No. 9 at 10-11 ⁋10. 9 Perhaps petitioner realizes that a habeas action would be barred as successive, and 10 attempts to disguise his action as a simple appeal of a state court, collateral review, final 11 judgment (entered years after his initial conviction), or as a petition seeking mandamus against 12 the state court to grant the relief he sought in state court. However, the Rooker-Feldman doctrine 13 bars review if his present action is fashioned as an “appeal” from a final state court judgment.1 14 To the extent petitioner is seeking mandamus against a state court, this federal court does not 15 have jurisdiction to do so. Demos v. U.S. District Court, etc., 925 F.2d 1160, 1161 (9th Cir. 1991) 16 (citing 28 U.S.C. § 1651). Thus, pared to its essence, this action is a successive habeas corpus 17 petition, disguised or not. 18 Before petitioner can proceed with the instant application, he must move in the United 19 States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider 20 this successive petition. See 28 U.S.C. § 2244(b)(3). Therefore, the petition must be dismissed 21 without prejudice to its re-filing upon obtaining authorization from the United States Court of 22 Appeals for the Ninth Circuit. 23 In accordance with the above, IT IS HEREBY RECOMMENDED that this action be 24 dismissed as a second or successive habeas corpus application without prejudice to its refiling 25 1 “The Rooker–Feldman doctrine prevents the lower federal courts from exercising jurisdiction 26 over cases brought by ‘state-court losers’ challenging ‘state-court judgments rendered before the 27 district court proceedings commenced.’” Lance v. Dennis, 546 U.S.459, 460 (2006) (citing Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 284 (2005)). 28 1 with a copy of an order from the Ninth Circuit Court of Appeals authorizing petitioner to file a 2 successive petition. 3 These findings and recommendations are submitted to the United States District Judge 4 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 5 after being served with these findings and recommendations, petitioner may file written 6 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 7 Findings and Recommendations.” Petitioner is advised that failure to file objections within the 8 specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 9 F.2d 1153 (9th Cir. 1991). 10 Dated: September 13, 2021 /s/ Gregory G. Hollows 11 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28