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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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:13-cv-01283 MJS (HC)
SCOT ERIC PINKERTON,

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v.

FINDINGS AND RECOMMENDATION TO
Petitioner, DISMISS SUCCESSIVE PETITION FOR
WRIT OF HABEAS CORPUS PURSUANT
TO 28 U.S.C. § 2244(b)

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E. VALENZUELA, Warden,

ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT COURT JUDGE TO
THE PRESENT MATTER

Respondent.

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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.

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In the petition filed on July 8, 2013, Petitioner challenges his November 18, 1999

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conviction from the Kern County Superior Court for assault with a deadly weapon and

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battery resulting in the infliction of great bodily injury. (Pet., ECF No. 1.) Petitioner was

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sentenced to an indeterminate term of thirty-three (33) years to life in prison. (Id.)

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A review of the Court’s dockets and files shows Petitioner has previously sought

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habeas relief with respect to this conviction. In case number 1:03-cv-6061-DLB,

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Petitioner challenged the same underlying conviction. On July 1, 1998, the petition was

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denied on the merits. See Pinkerton v. Yarborough, E.D. Cal. Case No. 1:03-cv-6061-

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DLB, ECF No. 25.
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I.

DISCUSSION

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A court must dismiss a second or successive petition that raises the same

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grounds as a prior petition. 28 U.S.C. § 2244(b)(1). A court must also dismiss a second

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or successive petition raising a new ground unless the petitioner can show that 1) the

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claim rests on a new constitutional right, made retroactive by the United States Supreme

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Court 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

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

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

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that decides whether a second or successive petition meets these requirements; the

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Petitioner must first file a motion with the appropriate court of appeals to be authorized to

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file a second or successive petition with the district court.

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

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permitted by this section is filed in the district court, the applicant shall move in the

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appropriate court of appeals for an order authorizing the district court to consider the

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application." In other words, Petitioner must obtain leave from the Ninth Circuit before he

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can file a second or successive petition in district court. See Felker v. Turpin, 518 U.S.

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651, 656-657 (1996). This Court must dismiss any second or successive petition unless

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the Court of Appeals has given Petitioner leave to file the petition because a district court

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lacks subject-matter jurisdiction over a second or successive petition. Greenawalt v.

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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

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petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that

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he has obtained prior leave from the Ninth Circuit to file his successive petition attacking

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the conviction. That being so, this Court has no jurisdiction to consider Petitioner's

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renewed application for relief under Section 2254 and must dismiss the petition. See

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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

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U.S.C. § 2244(b)(3).

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II.

ORDER AND RECOMMENDATION

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The Court ORDERS the Clerk of Court to assign a United States District Court
Judge to the present matter.

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The Court RECOMMENDS that the petition for writ of habeas corpus be
DISMISSED as successive.

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These findings and recommendations are submitted to the United States District

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Court Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636

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(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court,

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Eastern District of California. Within thirty (30) days after being served with a copy, 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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Recommendations." Replies to the objections shall be served and filed within fourteen

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(14) days (plus three days if served by mail) after service of the objections. The Court

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will then review the Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1)(c). The

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parties are advised that failure to file objections within the specified time may waive the

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right to appeal the District 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:

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August 15, 2013

/s/

UNITED STATES MAGISTRATE JUDGE
DEAC _Signature- END:

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Michael J. Seng

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