Hurtado v. Gipson
ORDER signed by Magistrate Judge Sandra M. Snyder on 3/19/2014 recommending that 1 Petition for Writ of Habeas Corpus be dismissed. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 4/21/2014. (Lundstrom, T)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
RICHARD ANTHONY HURTADO,
Case No. 1:14-cv-00126-LJO-SMS (HC)
ORDER RE: PETITION FOR HABEAS
CONNIE GIPSON, Warden,
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
Petitioner filed the instant petition for writ of habeas corpus January 29, 2014. Doc. 1.
Petitioner filed a previous petition for writ of habeas corpus on September 24, 2008. 1:08-cv-
01429-DLB, Doc. 1. The previous petition challenged the same convictions. It was found to be
untimely and was denied on the merits on January 14, 2010. Id., doc. 31.
Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary dismissal
of a habeas petition “[i]f it plainly appears from the face of the petition and any exhibits annexed to
it that the petitioner is not entitled to relief in the district court.” Under AEDPA, an applicant
seeking to file a second or successive petition must obtain from the appropriate court of appeals an
order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3)(A). Section
(2) A claim presented in a second or successive habeas corpus application under section 2254 that
was not presented in a prior application shall be dismissed unless—
(A) the applicant shows that the claim relies on a new rule of constitutional law made retroactive
to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the
exercise of due diligence; and (ii) the facts underling the claim, if proven and viewed in the light
of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that,
but for constitutional error, no reasonable fact finder would have found the applicant guilty of the
28 U.S.C. § 2244(b)(2)(A)-(B).
“Generally, a new petition is „second or successive‟ if it raises claims that were or could
have been adjudicated on their merits in an earlier petition.” Cooper v. Calderon, 274 F.3d 1270,
1273 (9th Cir.2001). Even if a petitioner can demonstrate that he qualifies for one of the exceptions
set forth in 28 U.S.C. § 2244(b)(2), he must seek authorization from the court of appeals before
filing his new petition with the district court. Burton v. Stewart, 549 U.S. 147 (2007); 28 U.S.C. §
2244(b)(3). Even if Petitioner contends that he should be permitted to file a successive petition
based on his claim that he is actually innocent and appellate counsel was ineffective, he cannot
proceed with such claims without authorization from the appropriate court of appeals. 28 U.S.C. §
2244(b)(3)(A). There is simply no evidence in the record that Petitioner sought or was granted such
authorization. See Burton v. Stewart, 549 U.S. 147. Accordingly, because the prior petition was
adjudicated and denied on the merits, the instant petition is clearly a second and successive petition
which must be dismissed without prejudice.
Based on the foregoing, it is HEREBY RECOMMENDED that the instant petition for writ
of habeas corpus be DISMISSED without prejudice.
These findings and recommendations are submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within thirty (30) days
after being served with these findings and recommendations, any party may file written objections
with the court. Such a document should be captioned “Objections to Magistrate Judge‟s Findings
and Recommendation.” Responses to objections shall be filed within 14 days after service of
objections. Failure to file objections within the specified time may waive the right to appeal. See
Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.
March 19, 2014
/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?