(HC) Bolin v. State of California ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL C. BOLIN, Case No. 1:22-cv-00670-EPG-HC 12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION FOR WRIT OF 13 v. HABEAS CORPUS 14 STATE OF CALIFORNIA, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 15 Respondent. 16 17 Petitioner Paul C. Bolin is a state prisoner proceeding pro se with a petition for writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. As Petitioner previously sought federal habeas 19 relief with respect to the convictions challenged in the instant petition, the undersigned finds that 20 dismissal of the petition is warranted pursuant to 28 U.S.C. § 2244(b) as an unauthorized 21 successive petition. 22 I. 23 DISCUSSION 24 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 25 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 26 to file a response, if it “plainly appears from the petition and any attached exhibits that the 27 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 1 A federal court must dismiss a second or successive petition that raises the same grounds 2 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 3 petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, 4 retroactive, constitutional right, or (2) the factual basis of the claim was not previously 5 discoverable through due diligence, and these new facts establish by clear and convincing 6 evidence that but for the constitutional error, no reasonable factfinder would have found the 7 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)–(B). However, it is not the 8 district court that decides whether a second or successive petition meets these requirements. 9 Section 2244(b)(3)(A) provides: “Before a second or successive application permitted by 10 this section is filed in the district court, the applicant shall move in the appropriate court of 11 appeals for an order authorizing the district court to consider the application.” In other words, a 12 petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 13 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656–57 (1996). This Court must 14 dismiss any second or successive petition unless the Court of Appeals has given a petitioner 15 leave to file the petition because a district court lacks subject-matter jurisdiction over a second or 16 successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). 17 Here, Petitioner challenges his 1991 Kern County Superior Court murder convictions for 18 which he was sentenced to death. (ECF No. 1 at 2).1 Petitioner previously sought federal habeas 19 relief in this Court with respect to the same convictions. See Bolin v. Chappell, No. 1:99-cv- 20 05279-LJO-SAB, 2016 WL 3213551 (E.D. Cal. June 9, 2016) (denied on the merits); Bolin v. 21 Kern County Superior Court, No. 1:17-cv-00985-LJO-SAB (dismissed as successive); Bolin v. 22 On Habeas Corpus, No. 1:18-cv-00692-LJO-SAB (dismissed as successive).2 Thus, the Court 23 finds that the instant petition is “second or successive” under 28 U.S.C. § 2244(b). 24 As Petitioner has already filed a federal petition for writ of habeas corpus regarding his 25 Kern County Superior Court murder convictions, Petitioner cannot file another petition in this 26 Court regarding the same convictions without first obtaining permission from the United States 27 1 Page numbers refer to ECF page numbers stamped at the top of the page. 2 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 1 | Court of Appeals for the Ninth Circuit. Here, Petitioner makes no showing that he has obtained 2 | prior leave from the Ninth Circuit to file this successive petition. Therefore, this Court has no 3 | jurisdiction to consider Petitioner’s renewed application for relief under 28 U.S.C. § 2254 and 4 | must dismiss the petition. See Burton, 549 U.S. at 157. 5 I. 6 RECOMMENDATION & ORDER 7 Accordingly, the undersigned HEREBY RECOMMENDS that the petition for writ of 8 | habeas corpus be DISMISSED as an unauthorized successive petition. 9 Further, the Clerk of Court is DIRECTED to randomly ASSIGN a District Court Judge to 10 | the present matter. 11 This Findings and Recommendation is submitted to the assigned United States District 12 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 13 | Rules of Practice for the United States District Court, Eastern District of California. Within 14 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 15 | written objections with the court and serve a copy on all parties. Such a document should be 16 | captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned 17 | United States District Court Judge will then review the Magistrate Judge’s ruling pursuant to 28 18 | U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 19 | time may waive the right to appeal the District Court’s order. Wilkerson v. Wheeler, 772 F.3d 20 | 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 IT IS SO ORDERED. 23| Dated: _ June 28, 2022 [see ey UNITED STATES MAGISTRATE JUDGE 25 26 27 28