(HC) Gray v. The People ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS EUGENE GRAY, ) Case No.: 1:22-cv-01284 JLT HBK (HC) ) 12 Petitioner, ) ORDER ADOPTING THE FINDINGS AND ) RECOMMENDATIONS, DENYING PETITION 13 v. ) FOR WRIT OF HABEAS CORPUS, ) DIRECTING CLERK OF COURT TO CLOSE 14 THE PEOPLE, ) CASE, AND DECLINING TO ISSUE ) CERTIFICATE OF APPEALABILITY 15 Respondent. ) ) (Docs. 1, 5) 16 ) 17 The assigned magistrate judge conducted a preliminary review under Rule 4 of the Rules 18 Governing Section 2254 Cases, and found the Petition is successive. (Doc. 5.) The magistrate 19 judge noted Petitioner filed a previous petition in this Court challenging the same sentence 20 imposed by the Tulare County Superior Court, and it was dismissed as untimely and for failure to 21 state a cognizable claim in Case No. 1:21-cv-00595-DAD-JLT. (Id. at 2.) In addition, the 22 magistrate judge found “[n]othing in the docket shows that Petitioner obtained an order from the 23 Ninth Circuit Court of Appeals authorizing him to file a second or successive petition.” (Id.) 24 “Because Petitioner has previously sought relief from this Court for the same conviction and 25 sentence,” the magistrate judge found “the instant petition is an unauthorized successive petition 26 prohibited by 28 U.S.C. § 2244(b).” (Id. at 3.) Therefore, the magistrate judge determined the 27 “Court has no jurisdiction” to consider the petition, and recommended it be dismissed. (Id.) 28 1 Petitioner filed objections to the Findings and Recommendations on November 2, 2022. 2 (Doc. 6.) He now argues the Court erred in dismissing his prior petition as untimely and for 3 failure to state a claim (Id. at 2-4). He acknowledges the instant petition “challenged the same 4 sentence” as the petition filed in Case No. 1:21-cv-00595-DAD-JLT (Id. at 2), and he does not 5 deny that he did not obtain authorization from Ninth Circuit to file a successive petition. (See 6 generally Doc. 6.) Thus, Petitioner does not present any argument or evidence that undermines 7 the findings of the magistrate judge. 8 According to 28 U.S.C. § 636 (b)(1)(C), the Court conducted a de novo review of the case. 9 Having carefully reviewed the entire file, including Petitioner’s objections, the Court concludes 10 that the magistrate judge’s Findings and Recommendations are supported by the record and 11 proper analysis. The Court lacks jurisdiction over this petition because it is successive. See 28 12 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by this section is 13 filed in the district court, the applicant shall move in the appropriate court of appeals for an order 14 authorizing the district court to consider the application.”). 15 A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a 16 district court’s denial of his petition, and an appeal is only allowed in certain circumstances. 17 Miller-El v. Cockrell, 537 U.S. 322, 335–36 (2003); 28 U.S.C. § 2253. If a court denies a habeas 18 petition on the merits, the court may only issue a certificate of appealability “if jurists of reason 19 could disagree with the district court’s resolution of [the petitioner’s] constitutional claims or that 20 jurists could conclude the issues presented are adequate to deserve encouragement to proceed 21 further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Though the 22 petitioner is not required to prove the merits of his case, he must demonstrate “something more 23 than the absence of frivolity or the existence of mere good faith on his . . . part.” Miller-El, 537 24 U.S. at 338. 25 The Court finds that reasonable jurists would not find the Court’s determination that the 26 Petition should be denied debatable or wrong, or that the issues presented are deserving of 27 encouragement to proceed further. Petitioner has not made the required substantial showing of the 28 denial of a constitutional right. Therefore, the Court declines to issue a certificate of appealability. 1 | Based upon the foregoing, the Court ORDERS: 2 1. The Findings and Recommendations issued on October 25, 2022 (Doc. 5), are 3 ADOPTED in full. 4 2. The petition for writ of habeas corpus (Doc. 1) is DISMISSED. 5 3. The Court declines to issue a certificate of appealability. 6 4. The Clerk of the Court is directed to close the case. 7 IT IS SO ORDERED. 9 | Dated: _ March 31, 2023 Cerin | Tower TED STATES DISTRICT JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28