Williams v. Hill

Filing 7

FINDINGS and RECOMMENDATION Regarding Successive Petition for Writ of Habeas Corpus 1 , signed by Magistrate Judge Barbara A. McAuliffe on 11/27/12: Thirty (30) Day Deadline for Objections. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CHRISTOPHER WILLIAMS,

1:12-CV-01807 LJO BAM HC

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Petitioner,
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FINDINGS AND RECOMMENDATION
REGARDING SUCCESSIVE PETITION
FOR WRIT OF HABEAS CORPUS

v.
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RICK HILL, Warden, et al.,

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Respondents.
____________________________________/

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
In the petition filed on November 5, 2012, Petitioner challenges his 2005 conviction

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sustained in Fresno County Superior Court for second degree murder, vehicular manslaughter,

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evading police, possession of controlled substance for sale, transportation of controlled substance,

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and leaving the scene of a crime. A review of the Court’s dockets and files shows Petitioner has

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already sought habeas relief with respect to this conviction in Williams v. Hill, case no. 1:10-cv-

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00410 DLB HC. In that case, the petition was dismissed with prejudice for violating the statute of

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limitations.

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

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

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

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constitutional right or 2) the factual basis of the claim was not previously discoverable through due

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diligence, and these new facts establish by clear and convincing evidence that but for the

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constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying

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offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a

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

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successive petition.

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

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section is filed in the district court, the applicant shall move in the appropriate court of appeals for an

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order authorizing the district court to consider the application." In other words, Petitioner must

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obtain leave from the Ninth Circuit before he can file a second or successive petition in district court.

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See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or

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successive petition unless the Court of Appeals has given Petitioner leave to file the petition because

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a district court lacks subject-matter jurisdiction over a second or successive petition. Pratt v. United

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States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997),

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cert. denied, 117 S.Ct. 794 (1997); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996).

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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). Petitioner makes no showing that he has

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

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

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from that conviction under Section 2254 and must dismiss the petition. See Greenawalt, 105 F.3d at

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1277; Nunez, 96 F.3d at 991. If Petitioner desires to proceed in bringing this petition for writ of

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habeas corpus, he must file for leave to do so with the Ninth Circuit. See 28 U.S.C. § 2244 (b)(3).

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RECOMMENDATION

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Accordingly, the Court HEREBY RECOMMENDS that this action be DISMISSED as

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successive.
This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill,
United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule

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304 of the Local Rules of Practice for the United States District Court, Eastern District of California.

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Within thirty (30) days after service of the Findings and Recommendation, Petitioner may file

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written objections with the Court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s ruling

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pursuant to 28 U.S.C. § 636(b)(1)(C). Petitioner is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d

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1153 (9th Cir. 1991).

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IT IS SO ORDERED.
Dated:
10c20k

November 27, 2012

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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