Scot Pinkerton v. E Valenzuela

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Michael J. Seng on 8/15/2013 recommending that 1 Petition for Writ of Habeas Corpus be dismissed. Case assigned to District Judge Anthony W. Ishii; New Case No. 1:13-cv-01283-AWI-MJS-(HC). Referred to Judge Anthony W. Ishii; Objections to F&R due by 9/23/2013. (Lundstrom, T)

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1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 11 Case No. 1:13-cv-01283 MJS (HC) SCOT ERIC PINKERTON, 12 13 v. FINDINGS AND RECOMMENDATION TO Petitioner, DISMISS SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2244(b) 14 15 E. VALENZUELA, Warden, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT COURT JUDGE TO THE PRESENT MATTER Respondent. 16 17 18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. 20 In the petition filed on July 8, 2013, Petitioner challenges his November 18, 1999 21 conviction from the Kern County Superior Court for assault with a deadly weapon and 22 battery resulting in the infliction of great bodily injury. (Pet., ECF No. 1.) Petitioner was 23 sentenced to an indeterminate term of thirty-three (33) years to life in prison. (Id.) 24 A review of the Court’s dockets and files shows Petitioner has previously sought 25 habeas relief with respect to this conviction. In case number 1:03-cv-6061-DLB, 26 Petitioner challenged the same underlying conviction. On July 1, 1998, the petition was 27 denied on the merits. See Pinkerton v. Yarborough, E.D. Cal. Case No. 1:03-cv-6061- 28 DLB, ECF No. 25. 1 1 I. DISCUSSION 2 A court must dismiss a second or successive petition that raises the same 3 grounds as a prior petition. 28 U.S.C. § 2244(b)(1). A court must also dismiss a second 4 or successive petition raising a new ground unless the petitioner can show that 1) the 5 claim rests on a new constitutional right, made retroactive by the United States Supreme 6 Court or 2) the factual basis of the claim was not previously discoverable through due 7 diligence, and these new facts establish by clear and convincing evidence that but for 8 the constitutional error, no reasonable factfinder would have found the applicant guilty of 9 the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court 10 that decides whether a second or successive petition meets these requirements; the 11 Petitioner must first file a motion with the appropriate court of appeals to be authorized to 12 file a second or successive petition with the district court. 13 Section 2244 (b)(3)(A) provides: "Before a second or successive application 14 permitted by this section is filed in the district court, the applicant shall move in the 15 appropriate court of appeals for an order authorizing the district court to consider the 16 application." In other words, Petitioner must obtain leave from the Ninth Circuit before he 17 can file a second or successive petition in district court. See Felker v. Turpin, 518 U.S. 18 651, 656-657 (1996). This Court must dismiss any second or successive petition unless 19 the Court of Appeals has given Petitioner leave to file the petition because a district court 20 lacks subject-matter jurisdiction over a second or successive petition. Greenawalt v. 21 Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997). 22 Because the current petition was filed after April 24, 1996, the provisions of the 23 Antiterrorism and Effective Death Penalty Act of 1996 apply to Petitioner's current 24 petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that 25 he has obtained prior leave from the Ninth Circuit to file his successive petition attacking 26 the conviction. That being so, this Court has no jurisdiction to consider Petitioner's 27 renewed application for relief under Section 2254 and must dismiss the petition. See 28 Greenawalt, 105 F.3d at 1277. If Petitioner desires to proceed in bringing this petition for 2 1 writ of habeas corpus, he must file for leave to do so with the Ninth Circuit. See 28 2 U.S.C. § 2244(b)(3). 3 II. ORDER AND RECOMMENDATION 4 5 The Court ORDERS the Clerk of Court to assign a United States District Court Judge to the present matter. 6 7 The Court RECOMMENDS that the petition for writ of habeas corpus be DISMISSED as successive. 8 These findings and recommendations are submitted to the United States District 9 Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 10 (b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 11 Eastern District of California. Within thirty (30) days after being served with a copy, any 12 party may file written objections with the Court and serve a copy on all parties. Such a 13 document should be captioned "Objections to Magistrate Judge's Findings and 14 Recommendations." Replies to the objections shall be served and filed within fourteen 15 (14) days (plus three days if served by mail) after service of the objections. The Court 16 will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). The 17 parties are advised that failure to file objections within the specified time may waive the 18 right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 19 20 21 22 23 IT IS SO ORDERED. 24 Dated: 25 August 15, 2013 /s/ UNITED STATES MAGISTRATE JUDGE DEAC _Signature- END: 26 Michael J. Seng ci4d6 27 28 3

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