Roberts v. Martel
Filing
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FINDINGS and RECOMMENDATIONS to DISMISS Successive 1 Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2244(b), signed by Magistrate Judge Michael J. Seng on 9/14/2011, referred to Judge O'Neill. Objections to F&R Due Within Thirty (30) Days. (Marrujo, C)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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HOWARD LEE ROBERTS,
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Petitioner,
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v.
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MIKE MARTEL, Warden,
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Respondent.
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1:11-cv-01543 LJO MJS HC
FINDINGS AND RECOMMENDATION TO
DISMISS 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.
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In the petition filed on August 3, 2011, Petitioner challenges his August 30, 2003
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conviction in Fresno County Superior Court for robbery. (Pet. at 1, ECF No. 1.) A review of the
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Court’s docket and files shows Petitioner has previously sought federal habeas relief with
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respect to this conviction. In Roberts v. Felker, 2009 U.S. Dist. LEXIS 58139 (E.D. Cal., June
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18, 2009) (Case No. 1:07-cv-01197-JLS-POR), Petitioner filed a petition for writ of habeas
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corpus challenging the same underlying conviction. The petition was dismissed on the merits
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on June 18, 2009.
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///
U .S. D istrict C ourt
E. D . C alifornia
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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.
Accordingly, the Court HEREBY RECOMMENDS the habeas corpus petition be
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RECOMMENDATION
DISMISSED as successive.
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This Findings and Recommendation is submitted to the assigned United States District
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Court Judge, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the
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Local Rules of Practice for the United States District Court, Eastern District of California.
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Within thirty (30) days after the date of service of this Findings and Recommendation, any
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party may file written objections with the Court and serve a copy on all parties. Such a
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document should be captioned “Objections to Magistrate Judge’s Findings and
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Recommendation.” Replies to the Objections shall be served and filed within fourteen (14)
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days after service of the Objections. The Finding and Recommendation will then be submitted
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to the District Court for review of the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636
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(b)(1)(c). The parties are advised that failure to file objections within the specified time may
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waive the right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th
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Cir. 1991).
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IT IS SO ORDERED.
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Dated:
ci4d6
September 14, 2011
Michael J. Seng
/s/
UNITED STATES MAGISTRATE JUDGE
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