(HC) Secrease v. Grounds ( 2024 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 SHANNON SECREASE, No. 2:13-cv-1565 DAD SCR P 12 Petitioner, 13 v. ORDER 14 RANDY GROUNDS, et al., 15 Respondents. 16 17 Petitioner is a state prisoner proceeding through counsel with a petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254. With his petition, petitioner filed a motion to stay 19 these proceedings to permit him to exhaust state remedies. On July 30, 2013, the court found the 20 petition successive, denied the motion to stay as moot, and stayed this action to permit petitioner 21 to seek leave from the Ninth Circuit Court of Appeals pursuant to 28 U.S.C. § 2244(b) to proceed. 22 (ECF No. 4.) Petitioner was ordered to file a motion to lift the stay within ten days of the Ninth 23 Circuit’s grant of leave to do so. 24 On October 30, 2015, the court ordered petitioner to inform the court about the status of 25 his request to the Ninth Circuit and whether petitioner wished to proceed with this action. (ECF 26 No. 7.) In his November 3, 2015 response, petitioner stated that he wished to proceed with this 27 action and asked the court to continue the stay to permit him to continue to exhaust his state 28 //// 1 remedies. (ECF No. 8.) Petitioner did not explain whether or not he had sought leave from the 2 Ninth Circuit to proceed with this successive petition. 3 Petitioner has also filed a motion to substitute counsel. (ECF No. 11.) Pursuant to Local 4 Rule 182(g), that request will be granted. 5 Except for the motion to substitute counsel, petitioner has not filed anything since his 6 November 2015 response to the court’s October 2015 order. 7 Before a petitioner files a successive petition for a writ of habeas corpus, they “shall move 8 in the appropriate court of appeals for an order authorizing the district court to consider the 9 application.” 28 U.S.C. §2244(b)(3)(A). A district court lacks jurisdiction to entertain a second 10 or successive petition until petitioner receives authorization from the court of appeals. Burton v. 11 Stewart, 549 U.S. 147, 157 (2007). “If the petition is second or successive, then the district court 12 lacks jurisdiction and must dismiss the petition unless and until the court of appeals grants an 13 application to file it.” Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018). 14 District courts in this circuit have held that they lack jurisdiction to even stay a successive 15 petition prior to an order from the Court of Appeals permitting the petitioner to file the petition. 16 See Steele v. Koenig, No. ED CV 21-864 ODW (MRW), 2021 WL 3603169, at *2 (C.D. Cal. 17 Aug. 13, 2021); Miller v. Fisher, Nos. SACV 16-0286 RGK (SS), SACV 16-0975 RGK (SS), 18 2016 WL 3982333, at *4 (C.D. Cal. July 1, 2016), rep. and reco. adopted, 2016 WL 3982306 19 (C.D. Cal. July 22, 2016); Williamson v. Horel, No. CIV S 07-1866 JAM DAD P, 2008 WL 20 3850806, at *4 n.2 (E.D. Cal. Aug. 15, 2008), rep. and reco. adopted, No. CIV S 07-1866 JAM 21 DAD P (E.D. Cal. Oct. 2, 2008); Cousin v. Ramos, CV-07-1153-PHX-ROS, 2007 WL 3231968, 22 at *3 (D. Ariz. Oct. 31, 2007) (“Although Petitioner requests that the Court stay this matter while 23 he now seeks the proper authorization from the Ninth Circuit, Petitioner was statutorily required 24 to take this step before filing his petition in this Court and he is not entitled to a stay because the 25 Court lacks jurisdiction over this action.”). 26 Petitioner in the present case has failed to show that he obtained permission from the 27 Ninth Circuit to proceed with this successive habeas petition. Petitioner will be ordered to show 28 cause why this case should not be dismissed for lack of jurisdiction. ] For the foregoing reasons, IT IS HEREBY ORDERED that: 2 1. Petitioner’s request to substitute counsel (ECF No. 11) is approved. The Clerk of the 3 Court is directed to amend the docket to reflect that attorney Charles Carbone is 4 substituted as sole counsel for petitioner. 5 2. Within thirty days of the date of this order, petitioner shall show cause why this case 6 should not be dismissed for lack of Jurisdiction. 7 g | Dated: September 16, 2024 md 10 SEAN C. RIORDAN 1 UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28