(HC) Bettencourt v. Spencer ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GARY RAY BETTENCOURT, Case No. 1:20-cv-01833-EPG-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 13 v. HABEAS CORPUS 14 GORDON SPENCER, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 15 Respondent. 16 17 Petitioner Gary Ray Bettencourt is a state prisoner proceeding pro se with a petition for 18 writ of habeas corpus pursuant to 28 U.S.C. § 2254. As Petitioner previously sought federal 19 habeas relief with respect to the convictions and sentence challenged in the instant petition, the 20 undersigned finds that dismissal of the petition is warranted pursuant to 28 U.S.C. § 2244(b) as 21 an unauthorized successive petition. 22 I. 23 BACKGROUND 24 On December 11, 2020, Petitioner filed the instant federal petition for writ of habeas 25 corpus in the Sacramento Division of the United States District Court for the Eastern District of 26 California. (ECF No. 1). On December 30, 2020, the petition was transferred to the Fresno 27 Division. (ECF No. 5). In the petition, Petitioner challenges his Merced County Superior Court /// 1 first-degree murder and robbery convictions for which he was sentenced to an imprisonment 2 term of life without the possibility of parole in January 1993. (ECF No. 1 at 1).1 3 II. 4 DISCUSSION 5 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 6 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 7 to file a response, if it “plainly appears from the petition and any attached exhibits that the 8 petitioner is not entitled to relief in the district court.” 9 A federal court must dismiss a second or successive petition that raises the same grounds 10 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 11 petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, 12 retroactive, constitutional right, or (2) the factual basis of the claim was not previously 13 discoverable through due diligence, and these new facts establish by clear and convincing 14 evidence that but for the constitutional error, no reasonable factfinder would have found the 15 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)–(B). However, it is not the 16 district court that decides whether a second or successive petition meets these requirements. 17 Section 2244(b)(3)(A) provides: “Before a second or successive application permitted by 18 this section is filed in the district court, the applicant shall move in the appropriate court of 19 appeals for an order authorizing the district court to consider the application.” In other words, a 20 petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 21 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656–57 (1996). This Court must 22 dismiss any second or successive petition unless the Court of Appeals has given a petitioner 23 leave to file the petition because a district court lacks subject-matter jurisdiction over a second or 24 successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). 25 Here, Petitioner challenges his Merced County Superior Court first-degree murder and 26 robbery convictions for which he was sentenced to an imprisonment term of life without the 27 possibility of parole. (ECF No. 1 at 1). Petitioner previously sought federal habeas relief in this 1 Court with respect to the same convictions. See Bettencourt v. Terhune, No. 1:99-cv-06044- 2 AWI-LJO (dismissed as untimely).2 The Court finds that the instant petition is “second or 3 successive” under 28 U.S.C. § 2244(b). See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 4 2009) (holding “dismissal of a first habeas petition for untimeliness presents a ‘permanent and 5 incurable’ bar to federal review of the underlying claims,” and thus renders subsequent petitions 6 “second or successive”). 7 As Petitioner has already filed a federal petition for writ of habeas corpus regarding his 8 Merced County Superior Court first-degree murder and robbery convictions, Petitioner cannot 9 file another petition in this Court regarding the same convictions and sentence without first 10 obtaining permission from the United States Court of Appeals for the Ninth Circuit. Here, 11 Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file this 12 successive petition. Therefore, this Court has no jurisdiction to consider Petitioner’s renewed 13 application for relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 549 U.S. 14 at 157. 15 II. 16 RECOMMENDATION & ORDER 17 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 18 habeas corpus be DISMISSED as an unauthorized successive petition. 19 Further, the Clerk of Court is DIRECTED to randomly ASSIGN a District Court Judge to 20 the present matter. 21 This Findings and Recommendation is submitted to the assigned United States District 22 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 23 Rules of Practice for the United States District Court, Eastern District of California. Within 24 THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 25 written objections with the court and serve a copy on all parties. Such a document should be 26 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 27 2 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 1 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 2 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 3 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 4 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 5 6 IT IS SO ORDERED. 7) Dated: _ January 14, 2021 [Je hey 8 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28