(HC) Saesee v. Lynch ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROGER SAESEE, Case No. 1:22-cv-01301-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR LACK OF 13 v. JURISDICTION1 14 LYNCH, OBJECTIONS DUE IN 14 DAYS 15 Respondent. (Doc. No. 1) 16 ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE 17 18 19 Petitioner Roger Saesee is a state prisoner proceeding pro se on his petition for writ of 20 habeas corpus under 28 U.S.C. § 2254 (“Petition”), which was transferred by the Sacramento 21 Division of the Eastern District of California to this Court on October 12, 2022. (Doc. Nos. 1, 4). 22 This matter is before the court for preliminary review. Under Rule 4 of the Rules Governing 23 Section 2254 Cases, the court must examine the habeas corpus petition and order a response 24 unless it “plainly appears” that the petitioner is not entitled to relief. Under Rule 4, courts have 25 “an active role in summarily disposing of facially defective habeas petitions.” Ross v. Williams, 26 896 F.3d 958, 968 (9th Cir. 2018) (citation omitted). The court may dismiss claims at screening 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 for “easily identifiable” procedural defects. See id. Finding the Petition successive, the 2 undersigned recommends that the Petition be dismissed. 3 I. BACKGROUND 4 Petitioner is challenging his 2006 conviction for murder in the first degree, shooting at a 5 dwelling, and permitting another to shoot from a vehicle for which he was sentenced to life 6 without parole with a concurrent term of twenty-five years to life imposed by the Tulare County 7 Superior Court. (Doc. No. 1 at 1). To the extent discernable, the Petition raises one ground for 8 relief: Petitioner’s constitutional rights were violated when he was “excluded” from California 9 Penal Code section 3051 as a defendant serving life without parole. (Id. at 5). 10 The Court takes judicial notice of its files and notes Petitioner filed two previous habeas 11 petitions in this Court challenging the same conviction and sentence imposed by the Tulare 12 County Superior Court: Saesee v. Horel, No. 1:08-cv-01152-OWW-JMD (denied on the merits 13 with prejudice) and Saesee v. Foulk, 1:14-cv-01287-JLT (dismissed as successive). Petitioner’s 14 first petition was denied on the merits and his subsequent petition was dismissed as second or 15 successive. Petitioner does not allege and there is nothing in the docket that shows Petitioner 16 obtained an order from the Ninth Circuit Court of Appeals authorizing him to file a second or 17 successive petition. 18 II. APPLICABLE LAW AND ANALYSIS 19 A second or successive petition that raises the same grounds as a prior petition must be 20 dismissed. 28 U.S.C. § 2244(b)(1). Dismissal also is required for a second or successive petition 21 raising a new ground unless the petitioner can show that (1) the claim rests on a new constitutional 22 right, made retroactive by the United States Supreme Court or (2) the factual basis of the claim was 23 not previously discoverable through due diligence, and these new facts establish by clear and 24 convincing evidence that but for the constitutional error, no reasonable factfinder would have found 25 the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). 26 However, it is not the district court that decides whether a second or successive petition 27 meets these requirements; the petitioner must obtain leave from the Ninth Circuit Court of Appeals 28 to proceed. See § 2244 (b)(3)(A) (“Before a second or successive application permitted by this 1 section is filed in the district court, the applicant shall move in the appropriate court of appeals for 2 an order authorizing the district court to consider the application.”); Burton v. Stewart, 549 U.S. 3 147, 152-53 (2007); Chades v. Hill, 976 F.3d 1055, 1056 (9th Cir. 2020). This court is mandated 4 to dismiss a second or successive petition unless the Court of Appeals has given petitioner leave to 5 file the petition because a district court lacks subject-matter jurisdiction over a second or successive 6 petition. Burton, 549 U.S. at 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). 7 Because Petitioner has previously sought relief from this Court for the same conviction and 8 sentence, the undersigned finds that the instant petition is an unauthorized successive petition 9 prohibited by 28 U.S.C. § 2244(b). Petitioner makes no showing that he has obtained prior leave 10 from the Ninth Circuit to file his successive petition. Therefore, this Court lacks jurisdiction to 11 consider Petitioner’s renewed application for relief under 28 U.S.C. § 2254 and must dismiss the 12 Petition. See Burton, 549 U.S. at 157. 13 III. CERTIFICATE OF APPEALABILITY 14 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 15 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 16 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 17 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a certificate 18 of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 22-1(a); 19 United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court denies 20 habeas relief on procedural grounds without reaching the merits of the underlying constitutional 21 claims, the court should issue a certificate of appealability only “if jurists of reason would find it 22 debatable whether the petition states a valid claim of the denial of a constitutional right and that 23 jurists of reason would find it debatable whether the district court was correct in its procedural 24 ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present 25 and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not 26 conclude either that the district court erred in dismissing the petition or that the petitioner should 27 be allowed to proceed further.” Id. Here, reasonable jurists would not find the undersigned’s 28 1 | conclusion debatable or conclude that petitioner should proceed further. The undersigned therefore 2 || recommends that a certificate of appealability not issue. 3 Accordingly, it is ORDERED: 4 The clerk of court is directed to assign this case to a district judge for the purposes of 5 || reviewing these findings and recommendations. 6 It is further RECOMMENDED: 7 1. The Petition (Doc. No. 1) be DISMISSED as successive. 8 2. No certificate of appealability be issued. 9 3. The Clerk of Court be directed to terminate any pending motions/deadlines and 10 | close this case. 11 NOTICE TO PARTIES 12 These findings and recommendations will be submitted to the United States district judge 13 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 14 | days after being served with these findings and recommendations, a party may file written 15 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 16 | Findings and Recommendations.” Parties are advised that failure to file objections within the 17 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 18 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 19 20 Dated: _ October 25, 2022 oe Zh. Sareh Zackte 1 HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28