Chavez v. Miller

Filing 5

FINDINGS and RECOMMENDATION Regarding 1 Petition for Writ of Habeas Corpus, signed by Magistrate Judge Dennis L. Beck on 4/17/12. Referred to Judge O'Neill. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BARBARA LYNN CHAVEZ,

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1:12-cv-00567-LJO-DLB (HC)

Petitioner,

FINDINGS AND RECOMMENDATION
REGARDING PETITION FOR WRIT OF
HABEAS CORPUS

v.

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[Doc. 1]
WALTER MILLER,

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Respondent.
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/

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Petitioner is proceeding pro se with a petition for writ of habeas corpus pursuant to 28
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U.S.C. § 2254.
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Petitioner filed the instant petition for writ of habeas corpus on April 11, 2012.
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Petitioner challenges a 1999 conviction of first degree murder, second degree burglary, attempted
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robbery, and conspiracy. Petitioner is currently serving a sentence of life without the possibility
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of parole.
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Petitioner has previously filed a petition for writ of habeas corpus in this Court on May
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13, 2005 in 1:05-cv-00490-OWW-DLB (HC), challenging the same 1999 conviction. The
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petition was dismissed as untimely on January 11, 2007. The Ninth Circuit Court of Appeals
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affirmed the dismissal on June 18, 2010.
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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 (AEDPA) apply to Petitioner's current
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petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). A federal court must dismiss a second or
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successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The

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court must also dismiss a second or successive petition raising a new ground unless the petitioner

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can show that 1) the claim rests on a new, retroactive, constitutional right or 2) the factual basis

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

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

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would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B).

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However, it is not the district court that decides whether a second or successive petition meets

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these requirements, which allow a petitioner to file a second or successive petition.

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

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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 leave

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

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successive petition. Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v.

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Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v.

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United States, 96 F.3d 990, 991 (7th Cir. 1996).

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A second or successive petition for habeas corpus is not considered “successive” if the

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initial habeas petition was dismissed for a technical or procedural reason versus on the merits.

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See Slack v. McDaniel, 529 U.S. 473, 485-87 (2000) (holding that a second habeas petition is not

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successive if the initial habeas petition was dismissed for failure to exhaust); Stewart v.

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Martinez-Villareal, 523 U.S. 637, 643-45 (1998) (a second habeas petition is not successive if the

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claim raised in the first petition was dismissed by the district court as premature.)

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As previous stated, the prior petition in 1:05-cv-00490-OWW-DLB (HC) was dismissed

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as untimely and judgment was entered. A petition that is dismissed as time-barred constitutes an

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adjudication on the merits for successive purposes. McNabb v. Yates, 576 F.3d 1028, 1030 (9th

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Cir. 2009); see also Quezada v. Smith, 624 F.3d 514, 518 (2d Cir. 2010); Altman v. Benik, 337
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F.3d 764, 766 (7th Cir. 2003). Because the prior petition was adjudicated “on the merits,” the

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instant petition is a “second or successive petition” under § 2244(b) that must be dismissed to re-

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filing if Petitioner seeks and obtains approval in the Ninth Circuit Court of Appeals to file a

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second or successive petition.

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RECOMMENDATION

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Based on the foregoing, it is HEREBY RECOMMENDED that:

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The instant petition for writ of habeas corpus is DISMISSED; and

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2.

The Clerk of Court be directed to terminate this action.

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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 being served with a copy, any party may file written objections with

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the court and serve a copy on all parties. Such a document should be captioned “Objections to

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Magistrate Judge’s Findings and Recommendation.” Replies to the objections shall be served

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and filed within fourteen (14) days after service of the objections. The Court will then review the

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Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that

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failure to file objections within the specified time may waive the right to appeal the District

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Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
3b142a

April 17, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

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