Prince v. Cate

Filing 5

FINDINGS and RECOMMENDATION to Dismiss Successive 1 Petition for Writ of Habeas Corpus pursuant to 28 USC 2244(b); ORDER Directing Clerk of Court to Assign District Court Judge, signed by Magistrate Judge Michael J. Seng on 11/17/11. Referred to Judge Ishii. This case has been assigned to Chief Judge Anthony W. Ishii and Magistrate Judge Michael J. Seng. The new case number is 1:11-cv-01888-AWI-MJS (HC). (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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PATRICK PRINCE,
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Petitioner,
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v.
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MATTHEW CATE,
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Respondent.
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________________________________)

1:11-cv-01888 MJS HC
FINDINGS AND RECOMMENDATION TO
DISMISS SUCCESSIVE PETITION FOR
WRIT OF HABEAS CORPUS PURSUANT
TO 28 U.S.C. § 2244(b)
ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT COURT JUDGE

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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 November 14, 2011, Petitioner challenges his January 29, 2004

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conviction in Kern County Superior Court for various counts relating to residential burglary and

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sexual assault. (Pet. at 7, ECF No. 1.) A review of the Court’s docket and files shows

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Petitioner has previously sought federal habeas relief with respect to this conviction. In case

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number 1:08-cv-01014-JF (HC), Petitioner challenged the same underlying conviction. The

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petition was denied on the merits on March 25, 2010.

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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). Here, Petitioner claims that newly discovered

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DNA evidence shows that he was not the perpetrator of the crimes. However, Petitioner makes

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no showing that he has obtained prior leave from the Ninth Circuit to file his successive

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petition attacking the conviction. That being so, this Court has no jurisdiction to consider

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Petitioner's renewed application for relief under Section 2254 and must dismiss the petition.

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See Greenawalt, 105 F.3d at 1277. If Petitioner desires to proceed in bringing this petition for

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writ of habeas corpus, he must file for leave to do so with the Ninth Circuit. See 28 U.S.C. §

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2244(b)(3).

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///

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II.

1.) The Court HEREBY ORDERS the Clerk of Court assign a District Court Judge to

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the present petition; and
2.) The Court RECOMMENDS the habeas corpus petition be DISMISSED as

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ORDER AND RECOMMENDATION

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

November 17, 2011

Michael J. Seng

/s/
UNITED STATES MAGISTRATE JUDGE

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