Avila v. Soto

Filing 2

FINDINGS AND RECOMMENDATION TO DISMISS SUCCESSIVE 1 PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2244(b) AND DIRECTING CLERK OF COURT TO ASSIGN DISTRICT COURT JUDGE TO THE PRESENT MATTER signed by Magistrate Judge Michael J. Seng on 1/14/2015. District Judge Anthony W. Ishii assigned to case; new case number is 1:15-cv-00054-AWI-MJS-(HC). Referred to Judge Anthony W. Ishii; Objections to F&R due by 2/20/2015. (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. 1:15-cv-00054 MJS (HC)
JAIME J. AVILA, III,

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v.

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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

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J. SOTO, Warden,
Respondent.

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas
corpus under 28 U.S.C. § 2254.

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In the petition filed on January 12, 2015, Petitioner challenges an October 25,

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2007 conviction in the Superior Court of California, County of Kern for second degree

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murder, attempted murder, assault with a firearm, possession of a firearm by a felon,

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and attempting to dissuade a witness. Petitioner was sentenced to an indeterminate

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state prison term of fifty-five years to life, plus a determinate term of fifty-two years, four

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months.

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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 1:12-cv-01475-AWI-BAM

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(HC), Petitioner challenged the same underlying conviction. On July 3, 2013, the petition

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was denied as untimely.1 See Avila v. Harris, E.D. Cal. Case No. 1:12-cv-01475-AWI-

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BAM (HC), ECF Nos. 17, 19.

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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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In McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009), the Ninth Circuit held that dismissal of
a habeas petition for failure to comply with the AEDPA statute of limitations renders subsequent petitions
challenging the same conviction successive.

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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 RECOMMENDS that the petition for writ of habeas corpus be

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DISMISSED as successive. Further, the Court ORDERS the Clerk of Court to assign a

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District Court judge to the instant matter.

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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 result in

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the waiver of rights on appeal. Wilkerson v. Wheeler, __ F.3d __, __, No. 11-17911,

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2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. Sullivan, 923 F.2d

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1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

January 14, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
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