Simmons v. Grounds

Filing 10

ORDER DISMISSING PETITION for Writ of Habeas Corpus as Successive; ORDER DIRECTING Clerk of Court to Enter Judgment; and ORDER DECLINING to Issue a Certificate of Appealability, signed by Magistrate Judge Michael J. Seng on 8/10/2011. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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ERIC JUSTIN RENE SIMMONS,
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Petitioner,
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v.
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RANDY GROUNDS, Warden,
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Respondent.
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________________________________)

1:11-cv-00312 MJS HC
ORDER DISMISSING SUCCESSIVE
PETITION FOR WRIT OF HABEAS
CORPUS PURSUANT TO
28 U.S.C. § 2244(b)

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner has consented to Magistrate Judge jurisdiction under

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28 U.S.C. § 636(c).

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In the petition filed on January 20, 2011, Petitioner challenges his October 22, 1996

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conviction in Kern County Superior Court for receiving stolen property. (Pet., ECF No. 1.) A

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review of the Court’s dockets and files shows Petitioner has previously sought habeas relief

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with respect to this conviction. In case number 1:01-cv-05541-SMS, Petitioner challenged the

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same underlying conviction. On July 23, 2002, the petition was dismissed as untimely under

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the one year statute of limitations created by the Antiterrorism and Effective Death Penalty Act

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of 1996 (AEDPA).

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I.

DISCUSSION

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A court must dismiss a second or successive petition that raises the same grounds as

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a prior petition. 28 U.S.C. § 2244(b)(1). A court must also dismiss a second or successive

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petition raising a new ground unless the petitioner can show that 1) the claim rests on a new

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constitutional right, made retroactive by the United States Supreme Court or 2) the factual

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basis of the claim was not previously discoverable through due diligence, and these new facts

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establish by clear and convincing evidence that but for the constitutional error, no reasonable

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factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. §

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2244(b)(2)(A)-(B). However, it is not the district court that decides whether a second or

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successive petition meets these requirements; the Petitioner must first file a motion with the

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appropriate court of appeals to be authorized to file a second or successive petition with the

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district court.

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Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted

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by this section is filed in the district court, the applicant shall move in the appropriate court of

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appeals for an order authorizing the district court to consider the application." In other words,

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Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive

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petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must

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dismiss any second or successive petition unless the Court of Appeals has given Petitioner

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leave to file the petition because a district court lacks subject-matter jurisdiction over a second

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or successive petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997).

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Because the current petition was filed after April 24, 1996, the provisions of the

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Antiterrorism and Effective Death Penalty Act of 1996 apply to Petitioner's current petition.

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Lindh v. Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that he has obtained

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prior leave from the Ninth Circuit to file his successive petition attacking the conviction. That

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being so, this Court has no jurisdiction to consider Petitioner's renewed application for relief

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under Section 2254 and must dismiss the petition. See Greenawalt, 105 F.3d at 1277. If

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Petitioner desires to proceed in bringing this petition for writ of habeas corpus, he must file for

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leave to do so with the Ninth Circuit. See 28 U.S.C. § 2244(b)(3).

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II.

CERTIFICATE OF APPEALABILITY

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A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal

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a district court's denial of his petition, and an appeal is only allowed in certain circumstances.

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Miller-El v. Cockrell, 123 S.Ct. 1029, 1039 (2003). The controlling statute in determining

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whether to issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

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(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall be subject
to review, on appeal, by the court of appeals for the circuit in
which the proceeding is held.

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(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to another
district or place for commitment or trial a person charged with a
criminal offense against the United States, or to test the validity of
such person's detention pending removal proceedings.

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(c)(1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of
appeals from–

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(A) the final order in a habeas corpus proceeding in
which the detention complained of arises out of
process issued by a State court; or

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(B) the final order in a proceeding under section
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2255.

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(2) A certificate of appealability may issue under paragraph
(1) only if the applicant has made a substantial showing of the
denial of a constitutional right.

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(3) The certificate of appealability under paragraph (1)
shall indicate which specific issue or issues satisfy the showing
required by paragraph (2).

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If a court denies a petitioner's petition, the court may only issue a certificate of

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appealability "if jurists of reason could disagree with the district court's resolution of his

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constitutional claims or that jurists could conclude the issues presented are adequate to

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deserve encouragement to proceed further." Miller-El, 123 S.Ct. at 1034; Slack v. McDaniel,

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529 U.S. 473, 484 (2000). While the petitioner is not required to prove the merits of his case,

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he must demonstrate "something more than the absence of frivolity or the existence of mere

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good faith on his . . . part." Miller-El, 123 S.Ct. at 1040.

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In the present case, the Court finds that reasonable jurists would not find the Court's

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determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong,

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or deserving of encouragement to proceed further. Petitioner has not made the required

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substantial showing of the denial of a constitutional right. Accordingly, the Court hereby

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DECLINES to issue a certificate of appealability.

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III.

ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1. The Petition for Writ of Habeas Corpus is DISMISSED as successive;

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2. The Clerk of Court is DIRECTED to enter judgment; and

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3. The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.

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Dated:
ci4d6

August 10, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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