(HC) Duarte v. Covello ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 STEVEN A. DUARTE, No. 2:22-cv-02059-CKD-DAD (HC) 12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS AND DISMISSING 13 v. HABEAS PETITION AS AN UNAUTHORIZED SECOND OR 14 PATRICK COVELLO, SUCCESSIVE PETITION 15 Respondent. (Doc. Nos. 12, 18) 16 17 18 Petitioner Steven A. Duarte is a state prisoner proceeding pro se with a petition for writ of 19 habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States 20 Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 21 On May 24, 2023, the assigned magistrate judge issued findings and recommendations 22 recommending that respondent’s motion to dismiss (Doc. No. 12) be granted and that this federal 23 habeas action be dismissed, without prejudice, as an unauthorized second or successive petition. 24 (Doc. No. 18.) Those findings and recommendations were served on petitioner and contained 25 notice that any objections thereto were to be filed within fourteen (14) days from the date of 26 service. (Id. at 4.) On June 5, 2023, the court received petitioner’s timely objections to the 27 findings and recommendations. (Doc. No. 19.) Respondent filed no response to those objections. 28 ///// 1 In his objections, petitioner appears to again argue that he is presenting a claim of actual 2 innocence based upon his contention that the prosecution at his trial withheld from the defense 3 exculpatory evidence that would have exonerated him. (Doc. No. 19 at 1–3.) Petitioner also 4 contends that the evidence upon which he in part has based this most recent claim for federal 5 habeas relief is newly presented, even if not newly discovered, and that this district court is 6 authorized to address the pending petition under the actual innocence gateway as stated in Schlup 7 v. Delo, 513 U.S. 298 (1995). (Id.) 8 However, the pending findings and recommendations appropriately addressed and 9 rejected this same argument advanced by petitioner. (See Doc. No. 18 at 3–4.) Nothing raised in 10 petitioner’s objections calls into question the analysis set forth in the findings and 11 recommendations. The pending petition is undisputedly a second or successive petition and 12 petitioner has not obtained authorization from the Ninth Circuit Court of Appeals to proceed upon 13 it. Therefore, this court lacks jurisdiction to consider that petition unless and until such 14 authorization is obtained. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (explaining that 15 even if a petitioner qualifies for one of the exceptions to the general bar against second or 16 successive federal habeas petitions, the petitioner “must seek authorization from the court of 17 appeals before filing his new petition with the district court”) (citing 28 U.S.C. § 2244(b)(3)); see 18 also Burton v. Stewart, 549 U.S. 147, 152 (2007) (“We conclude . . . that because the 2002 19 petition is a ‘second or successive’ petition that [the petitioner] did not seek or obtain 20 authorization to file in the District Court, the District Court never had jurisdiction to consider it in 21 the first place.”); Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018) (“If the petition is second or 22 successive, then the district court lacks jurisdiction and must dismiss the petition unless and until 23 the court of appeals grants an application to file it.”); Cooper v. Calderon, 274 F.3d 1270, 1274 24 (9th Cir. 2001) (same). 25 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 26 court has conducted a de novo review of this case. Having carefully reviewed the entire file, the 27 court finds the findings and recommendations to be supported by the record and proper analysis. 28 Accordingly, the court will dismiss this federal habeas action, without prejudice, as an 1 | unauthorized second or successive petition. 2 Additionally, the court declines to issue a certificate of appealability. A petitioner seeking 3 | writ of habeas corpus has no absolute right to appeal; he may appeal only in limited 4 | circumstances. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 5 | 11 of the Rules Governing Section 2254 Cases requires that a district court issue or deny a 6 | certificate of appealability when entering a final order adverse to a petitioner. See also Ninth 7 | Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). The court will 8 || issue a certificate of appealability “if jurists of reason would find it debatable whether the petition 9 | states a valid claim of the denial of a constitutional right and that jurists of reason would find it 10 | debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 11 | U.S. 473, 484 (2000). Here, reasonable jurists would not find the court’s decision to dismiss the 12 | petition without prejudice to be debatable or conclude that the petition should proceed further. 13 | Thus, the court declines to issue a certificate of appealability. 14 Accordingly, 15 1. The findings and recommendations issued on May 24, 2023 (Doc. No. 18) are 16 adopted in full; 17 2. Respondent’s motion to dismiss the petition (Doc. No. 12) is granted; 18 3. The petition for writ of habeas corpus (Doc. No. 1) is dismissed, without prejudice, 19 due to petitioner’s failure to first obtain authorization to file it from the Ninth 20 Circuit Court of Appeals; 21 4. The court declines to issue a certificate of appealability; and 22 5. The Clerk of the Court is directed to close this case. 23 IT IS SO ORDERED. Dated: _ July 14, 2023 Da A. 2, el 25 UNITED STATES DISTRICT JUDGE 26 27 28