Jones v. Chappell

Filing 6

FINDINGS and RECOMMENDATIONS to Dismiss Successive 1 Petition for Writ of Habeas Corpus; ORDER Directing Clerk of Court to Assign District Judge to the Present Matter signed by Magistrate Judge Michael J. Seng on 03/16/2014. Referred to Judge O'Neill; Objections F&R due by 4/21/2014. (Flores, E)

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. 1:14-cv-00356 MJS (HC)
FORREST LEE JONES,

12
v.

13

FINDINGS AND RECOMMENDATION TO
Petitioner, DISMISS SUCCESSIVE PETITION FOR
WRIT OF HABEAS CORPUS PURSUANT
TO 28 U.S.C. § 2244(b)
ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT COURT JUDGE TO
THE PRESENT MATTER

14
15

KEVIN CHAPPELL,
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 March 13, 2014, Petitioner challenges his August 14, 1995

21

conviction from the Kings County Superior Court for burglary. Petitioner was sentenced

22

to serve an indeterminate term of 25 years to life in state prison under California's three

23

strike laws. Here, Petitioner challenges the conviction as violating his 1991 plea

24

agreement.

25

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

26

habeas relief with respect to this conviction. In case number 1:97-cv-05787-REC-LJO,

27

Petitioner challenged the same underlying conviction. On April 26, 1999, the petition was

28

denied on the merits. See Jones v. Hubbard, E.D. Cal. Case No. 1:97-cv-05787-REC1

1

LJO, ECF Nos. 37, 46.

2

I.

DISCUSSION

3

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

4

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

5

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

6

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

7

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

8

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

9

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

10

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

11

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

12

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

13

file a second or successive petition with the district court.

14

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

15

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

16

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

17

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

18

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

19

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

20

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

21

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

22

Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997).

23

Because the current petition was filed after April 24, 1996, the provisions of the

24

Antiterrorism and Effective Death Penalty Act of 1996 apply to Petitioner's current

25

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

26

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

27

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

28

renewed application for relief under Section 2254 and must dismiss the petition. See
2

1

Greenawalt, 105 F.3d at 1277. If Petitioner desires to proceed in bringing this petition for

2

writ of habeas corpus, he must file for leave to do so with the Ninth Circuit. See 28

3

U.S.C. § 2244(b)(3).

4

II.

5
6
7
8

ORDER AND RECOMMENDATION
The Court ORDERS the Clerk of Court to assign a United States District Court

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

9

These findings and recommendations are submitted to the United States District

10

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

11

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

12

Eastern District of California. Within thirty (30) days after being served with a copy, any

13

party may file written objections with the Court and serve a copy on all parties. Such a

14

document should be captioned "Objections to Magistrate Judge's Findings and

15

Recommendations." Replies to the objections shall be served and filed within fourteen

16

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

17

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

18

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

19

right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

20
21
22
23

IT IS SO ORDERED.
Dated:

March 16, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

24
25
26
27
28
3