Fegan v. Brazelton
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss 1 Petition for Writ of Habeas Corpus as Second and Successive; ORDER Directing that Objections be Filed Within Twenty-One Days; ORDER Directing Clerk of the Court to Assign District Judge to Case, signed by Magistrate Judge Jennifer L. Thurston on 07/02/14. Referred to Judge Ishii. Twenty-One Day Deadline. (Gonzalez, R)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STEPHEN FEGAN,
Plaintiff,
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v.
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BRAZELTON,
Defendant.
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FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITION FOR WRIT OF HABEAS
CORPUS AS SECOND AND SUCCESSIVE
ORDER DIRECTING THAT OBJECTIONS BE
FILED WITHIN TWENTY-ONE DAYS
ORDER DIRECTING CLERK OF THE COURT TO
ASSIGN DISTRICT JUDGE TO CASE
Petitioner is a state prisoner proceeding in propria persona with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254.
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Case No.: 1:14-cv-00967-JLT
PROCEDURAL HISTORY
The instant petition was filed on June 20, 2014, challenging a 1995 conviction in the Merced
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County Superior Court resulting in two sentences of life without the possibility of parole. (Doc. 1). In
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the course of conducting a preliminary screening of the petition, it has come to the Court’s attention
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that Petitioner has previously filed numerous federal habeas petitions challenging this same
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conviction.
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A review of the Court’s own docket reflects that Petitioner has previously filed in this Court
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petitions challenging his 1995 conviction, as follows: case no. 1:99-cv-6427-OWW-LJO (merits
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denial); case no. 1:06-cv-00531-OWW-DLB (dismissed as successive); case no. 1:08-cv-01140-DLB
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(dismissed as successive); case no. 1:08-cv-1373-JLT (dismissed as untimely); case no. 1:10-cv-
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01690-AWI-JLT (dismissing coram nobis petition and noting successive nature of challenge); 1:11-
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cv-01863-LJO-JLT (dismissed as successive).
DISCUSSION
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A. Preliminary Review of Petition.
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Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a petition
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if it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is
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not entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. The
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Advisory Committee Notes to Rule 8 indicate that the court may dismiss a petition for writ of habeas
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corpus, either on its own motion under Rule 4, pursuant to the respondent’s motion to dismiss, or after
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an answer to the petition has been filed. Herbst v. Cook, 260 F.3d 1039 (9th Cir.2001).
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B. Successive Petitions.
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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 constitutional
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error, no reasonable fact-finder would have found the applicant guilty of the underlying offense. 28
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U.S.C. § 2244(b)(2)(A)-(B).
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However, it is not the district court that decides whether a second or successive petition meets
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these requirements that allow a petitioner to file a second or successive petition, but rather the Ninth
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Circuit. 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 obtain
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leave from the Ninth Circuit before he can file a second or successive petition in district court. See
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Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or successive
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petition unless the Court of Appeals has given Petitioner leave to file the petition because a district
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court lacks subject-matter jurisdiction over a second or successive petition. Pratt v. United States, 129
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F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied,
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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 Antiterrorism
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and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current petition. Lindh v.
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Murphy, 521 U.S. 320, 327 (1997). It is abundantly clear from the chronology cited above that
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Petitioner has previously challenged his 1995 conviction in the Merced County Superior Court by
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filing multiple habeas petitions in this Court, dating back to 1999. However, Petitioner makes no
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showing that he has obtained leave from the Ninth Circuit to file this successive petition attacking that
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same conviction. That being so, this Court has no jurisdiction to consider Petitioner's renewed
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application for relief from that conviction under § 2254 and must dismiss the petition. See
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Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. If Petitioner desires to proceed in bringing this
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petition for writ of habeas corpus, he must first 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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ORDER
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For the foregoing reasons, the Clerk of the Court is DIRECTED to assign a United States
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District judge to this case.
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RECOMMENDATION
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Accordingly, the Court RECOMMENDS that the Petition for Writ of Habeas Corpus be
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DISMISSED as a second and successive petition.
This Findings and Recommendation is submitted to the United States District Court Judge
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assigned to the case pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local
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Rules of Practice for the United States District Court, Eastern District of California. Within twenty-one
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(21) days after being served with a copy of this Findings and Recommendation, any party may file
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written objections with the Court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendation.” Replies to the Objections shall be
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served and filed within ten (10) court days (plus three days if served by mail) after service of the
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Objections. The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636
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(b)(1)(C). The parties are advised that failure to file objections within the specified time may waive the
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right to appeal the Order of the District Court. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
July 2, 2014
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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