(HC) Henry v. Burton ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT HENRY, No. 2:22-cv-0609 KJM DB P 12 Petitioner, 13 v. ORDER 14 ROBERT BURTON, 15 Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, filed this application for a writ of habeas 18 corpus under 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge as 19 provided by 28 U.S.C. § 636(b)(1)(B) and Local Rule 302. 20 On June 30, 2023, the magistrate judge filed findings and recommendations, which were 21 served on all parties and which contained notice to all parties that any objections to the findings 22 and recommendations were to be filed within thirty days. Petitioner has filed objections to the 23 findings and recommendations. 24 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304, this 25 court has conducted a de novo review of this case. Having reviewed the file, the court declines to 26 adopt the findings and recommendations. 27 The magistrate judge recommends dismissing the petition for lack of jurisdiction because 28 petitioner did not obtain authorization to file a second or successive petition. F. & R. at 4, ECF 1 || No. 15. The magistrate judge appears to conclude this petition is a second or successive petition 2 || because it contests the same state court judgment that was contested in petitioner’s first federal 3 || habeas petition. See id. However, the fact petitioner “has previously filed a federal habeas 4 || petition does not necessarily render a subsequent petition ‘second or successive.’” Hill v. Alaska, 5 | 297 F.3d 895, 898 (9th Cir. 2002) (citing Jn re Cain, 137 F.3d 234, 235 (Sth Cir.1998)). Rather, 6 || as the magistrate judge notes, F. & R. at 3, “[a] habeas petition is second or successive only if it 7 || raises claims that were or could have been adjudicated on the merits” in a prior petition. McNabb 8 || v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); see also Cooper v. Calderon, 274 F.3d 1270, 1273 9 || (9th Cir. 2001). In the findings and recommendations, the magistrate judge does not discuss what 10 || claims petitioner brings in the current habeas petition and does not explain why those claims have 11 | or could have been adjudicated on the merits in the prior petition. In his objection, petitioner 12 || specifically argues he is bringing a new claim that could have not been brought in his prior 13 || petition. See Objs., ECF No. 16. 14 Accordingly, the court declines to adopt the findings and recommendations filed on 15 | June 30, 2023 (ECF No. 15). This matter is referred back to the magistrate judge to determine 16 || whether the petition is a second or successive petition under 28 U.S.C. § 2244 in light of the 17 || authorities cited here. 18 IT IS SO ORDERED. 19 | DATED: September 25, 2023. 20 21 CHIEF ED STATES DISTRICT JUDGE 23 24 25 26 27 28