(HC) Cooper v. The City of Elk Grove ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KYLE S. COOPER, No. 2:22-cv-0443 AC P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 THE CITY OF ELK GROVE, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. 19 In the instant petition, petitioner challenges his 2013 conviction on multiple charges, 20 which resulted in a sentence of thirty-seven years. ECF No. 1 at 2. 21 Under 28 U.S.C. § 2244(b)(3)(A), a second or successive application for habeas relief 22 may not be filed in district court without prior authorization by the court of appeals. Felker v. 23 Turpin, 518 U.S. 651, 657 (1996). Prior authorization is a jurisdictional requisite. Burton v. 24 Stewart, 549 U.S. 147, 152-53 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) 25 (once district court has recognized a petition as second or successive pursuant to § 2244(b), it 26 lacks jurisdiction to consider the merits). A petition is successive within the meaning of 28 27 U.S.C. § 2244(b) where it “seeks to add a new ground for relief” or “if it attacks the federal 28 court’s previous resolution of a claim on the merits.” Gonzalez v. Crosby, 545 U.S. 524, 532 1 (2005) (emphasis in original). “[A] ‘claim’ as used in § 2244(b) is an asserted federal basis for 2 relief from a state court’s judgment of conviction.” Id. at 530. “Even if a petitioner can 3 demonstrate that he qualifies for one of [the] exceptions [to filing a second or successive 4 petition], he must seek authorization from the court of appeals before filing his new petition with 5 the district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (citing 28 U.S.C. 6 § 2244(b)(3)). 7 The petition indicates (ECF No. 1 at 6), and the court’s records confirm, that petitioner 8 has previously filed an application for a writ of habeas corpus attacking the conviction and 9 sentence challenged in this case. The previous application was filed by the Clerk of the Court on 10 December 1, 2016, and was denied on the merits on July 23, 2020. Cooper v. Baughman, No. 11 2:16-cv-3039 DB (E.D. Cal.), ECF Nos. 1, 23. This court takes judicial notice of the record in 12 that proceeding. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take 13 judicial notice of its own records in other cases.”). 14 Before petitioner can proceed on his claims, he must submit a request to the United States 15 Court of Appeals for the Ninth Circuit to issue an order authorizing the district court to consider 16 the application and that request must be granted. 28 U.S.C. § 2244(b)(3). Petitioner has not 17 provided any evidence that he has received the required authorization. The undersigned will 18 therefore recommend that this action be dismissed without prejudice to re-filing once petitioner 19 receives authorization to proceed from the Ninth Circuit. 20 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a 21 United States District Judge to this action. 22 IT IS FURTHER RECOMMENDED that this action be dismissed without prejudice as 23 second or successive. 24 These findings and recommendations are submitted to the United States District Judge 25 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days 26 after being served with these findings and recommendations, petitioner may file written 27 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 28 Findings and Recommendations.” If petitioner files objections, he shall also address whether a 1 || certificate of appealability should issue and, if so, why and as to which issues. See 28 U.S.C. 2 | § 2253(c)(2). Petitioner is advised that failure to file objections within the specified time may 3 || waive the right to appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 4 | 1991). 5 || DATED: March 14, 2022 ~ 6 Lhar—e_ ALLISON CLAIRE 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28