Harris v. Yates

Filing 4

FINDINGS and RECOMMENDATIONS recommending the petition for writ of habeascorpus be DISMISSED, without prejudice, as a successive petition re 1 Petition for Writ of Habeas Corpus filed by Rudy Harris. Motion referred to Judge Ishii. Objections to F&R due by 6/5/2006. Signed by Judge Dennis L. Beck on 4/28/06. (Keeler, P)

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(HC) Harris v. Yates Doc. 4 Case 1:06-cv-00466-AWI-DLB Document 4 Filed 05/01/2006 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 JAMES YATES, Warden, 13 Respondent. 14 15 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 16 pursuant to 28 U.S.C. 2254. 17 Petitioner filed the instant petition for writ of habeas corpus on April 20, 2006. Petitioner 18 is challenging his 1997 conviction of petty theft with a prior in violation of California Penal 19 Code sections 490 and 666, and presenting false information to a police officer in violation of 20 California Penal Code section 148.9. A review of this Court's docket system, indicates that 21 Petitioner has previously filed a writ of habeas corpus pursuant to 28 U.S.C. 2254, in Rudy 22 Harris v. Gail Lewis, CV-F-99-6700 OWW LJO HC, which challenged the same conviction 23 which occurred in 1997. That petition was denied on the merits, with prejudice. (Court Docs. 24 21, 26, 53, 56, 58.) 25 DISCUSSION 26 Because the current petition was filed after April 24, 1996, the provisions of the 27 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current 28 1 Dockets.Justia.com UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA RUDY HARRIS, Petitioner, v. CV F 06-0466 AWI DLB HC FINDINGS AND RECOMMENDATIONS REGARDING PETITION FOR WRIT OF HABEAS CORPUS [Doc. 1] / Case 1:06-cv-00466-AWI-DLB Document 4 Filed 05/01/2006 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). A federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. 2244(b)(1). The court must also dismiss a second or successive petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, constitutional right or 2) the factual basis of the claim was not previously discoverable through due diligence, and these new facts establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a second or successive petition meets these requirements, which allow a petitioner to file a second or successive petition. Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." In other words, Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave to file the petition because a district court lacks subject-matter jurisdiction over a second or successive petition. Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996). A second or successive petition for habeas corpus is not considered "successive" if the initial habeas petition was dismissed for a technical or procedural reason versus on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-87 (2000) (holding that a second habeas petition is not successive if the initial habeas petition was dismissed for failure to exhaust); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-45 (1998) (a second habeas petition is not successive if the claim raised in the first petition was dismissed by the district court as premature.) Because the prior petition in CV-F-99-6700, was denied on the merits, it therefore bars further litigation challenging that same conviction, absent permission to file a second or successive petition. Petitioner makes no showing that he has obtained prior leave from the Ninth 2 Case 1:06-cv-00466-AWI-DLB Document 4 Filed 05/01/2006 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Circuit to file his successive petition attacking the conviction. That being so, this Court has no jurisdiction to consider Petitioner's renewed application for relief from that conviction under Section 2254 and must dismiss the petition. See Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. If Petitioner desires to proceed in bringing this petition for writ of habeas corpus, he must file for leave to do so with the Ninth Circuit Court of Appeals. See 28 U.S.C. 2244 (b)(3). RECOMMENDATION Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be DISMISSED, without prejudice, as a successive petition. These Findings and Recommendations are submitted to the assigned United States District Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 72304 of the Local Rules of Practice for the United States District Court, Eastern District of California. Within thirty (30) days after being served with a copy, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Replies to the objections shall be served and filed within ten (10) court days (plus three days if served by mail) after service of the objections. The Court will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. 636 (b)(1). The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). IT IS SO ORDERED. Dated: 3b142a April 28, 2006 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 3

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