(HC) Bolin v. On Habeas Corpus ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 PAUL C. BOLIN, Case No. 1:24-cv-00059-SKO (HC) 12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 v. FINDINGS AND RECOMMENDATION TO 14 ON HABEAS CORPUS, DISMISS SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS 15 Respondent. [TWENTY-ONE DAY OBJECTION 16 DEADLINE] 17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. He filed the instant petition in this Court on January 12, 2024. 20 Because the petition is an unauthorized successive petition, the Court will recommend it be 21 DISMISSED. 22 DISCUSSION 23 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 24 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 25 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 26 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 27 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it 1 440 F.2d 13, 14 (9th Cir. 1971). 2 A federal court must dismiss a second or successive petition that raises the same grounds 3 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 4 petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, 5 retroactive, constitutional right or 2) the factual basis of the claim was not previously 6 discoverable through due diligence, and these new facts establish by clear and convincing 7 evidence that but for the constitutional error, no reasonable factfinder would have found the 8 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the 9 district court that decides whether a second or successive petition meets these requirements. 10 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by 11 this section is filed in the district court, the applicant shall move in the appropriate court of 12 appeals for an order authorizing the district court to consider the application." In other words, 13 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 14 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must 15 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave 16 to file the petition because a district court lacks subject-matter jurisdiction over a second or 17 successive petition. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 18 1270, 1274 (9th Cir. 2001). 19 Petitioner challenges his 1991 Kern County Superior Court murder convictions for which 20 he was sentenced to death. Petitioner previously sought federal habeas relief in this Court with 21 respect to the same convictions. See Bolin v. Chappell, No. 1:99-cv-05279-LJO-SAB, 2016 WL 22 3213551 (E.D. Cal. June 9, 2016) (denied on the merits); Bolin v. Kern County Superior Court, 23 No. 1:17-cv-00985-LJO-SAB (dismissed as successive); Bolin v. On Habeas Corpus, No. 1:18- 24 cv-00692-LJO-SAB (dismissed as successive); Bolin v. State of California, No. 1:22-cv-00670- 25 ADA-EPG (dismissed as successive). 26 The Court finds that the instant petition is second or successive under 28 U.S.C. § 27 2244(b). Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to 1 renewed application for relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 2 549 U.S. at 157. 3 ORDER 4 Accordingly, the Clerk of Court is DIRECTED to assign a District Judge to this case. 5 RECOMMENDATION 6 For the foregoing reasons, the Court HEREBY RECOMMENDS that the petition be 7 DISMISSED as successive. 8 This Findings and Recommendation is submitted to the United States District Court 9 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 10 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 11 California. Within twenty-one (21) days after being served with a copy, Petitioner may file 12 written objections with the Court. Such a document should be captioned “Objections to 13 Magistrate Judge’s Findings and Recommendation.” The Court will then review the Magistrate 14 Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file 15 objections within the specified time may waive the right to appeal the District Court’s order. 16 Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 17 IT IS SO ORDERED. 18 19 Dated: January 17, 2024 /s/ Sheila K. Oberto . UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27