Drister v. Gill

Filing 5

FINDINGS and RECOMMENDATIONS that the Court Dismiss the 1 Petition for Habeas Corpus for Lack of Jurisdiction signed by Magistrate Judge Sandra M. Snyder on 03/11/2015. Referred to Judge Ishii; Objections to F&R due by 4/13/2015. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LEONARD O. DRISTER,

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Case No. 1:15-cv-00296-AWI-SMS HC

Petitioner,
FINDINGS AND RECOMMENDATIONS
RECOMMENDING THAT THE COURT
DISMISS THE PETITION FOR HABEAS
CORPUS FOR LACK OF JURISDICTION

v.
A. GILL, Warden,
Respondent.

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SCREENING ORDER
On February 25, 2015, Petitioner Leonard O. Drister, a federal prisoner proceeding pro se,
filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner is currently
incarcerated at the Federal Correctional Institution in Mendota, California, as a result of 2006
convictions in the Southern District of Ohio of conspiracy to commit an offense against the United
States in violation of 18 U.S.C. § 371, and bank robbery by force or violence contrary to 18 U.S.C.
§§ 2113(a) and (d); 2; 924(c)(1)(A)(iii); and 111. Petitioner contends that the sentencing court
improperly applied a sentence enhancement since Petitioner was actually innocent of the unrelated
underlying offense on which the enhancement was based.
DISCUSSION
Because Petitioner filed this petition after April 24, 1996, the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply. Lindh v. Murphy, 521 U.S.

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1 320, 327 (1997). When AEDPA applies, a federal court must dismiss a second or successive
2 petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The court must
3 also dismiss a second or successive petition raising a new ground unless the petitioner can show that
4 (1) the claim rests on a new retroactive constitutional right, or (2) the factual basis of the claim was
5 not previously discoverable through due diligence, and the new facts establish, by clear and
6 convincing evidence, that but for the constitutional error, no reasonable factfinder would have found
7 the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A) and (B).
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The circuit court of appeals, not the district court, must decide whether a second or

9 successive petition satisfies the statutory requirements to proceed. 28 U.S.C. §2244(b)(3)(A)
10 ("Before a second or successive petition permitted by this section is filed in the district court, the
11 applicant shall move in the appropriate court of appeals for an order authorizing the district court to
12 consider the application"). This means that a petitioner may not file a second or successive petition
13 in district court until he has obtained leave from the court of appeals. Felker v. Turpin, 518 U.S.
14 651, 656-57 (1996). In the absence of an order from the appropriate circuit court, a district court
15 lacks jurisdiction over the petition and must dismiss the second or successive petition. Greenawalt
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16 v. Stewart, 105 F.3d 1268, 1277 (9 Cir. 1997).

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Although Petitioner prepared his petition using a different form and made minor

18 modifications to the brief submitted in support of the petition, it is substantively the same §2241
19 petition as one filed in this Court on June 3, 2013. See Drister v. Gill, No. 1:13-cv-00841-LJO20 SAB, Doc. 1. On August 14, 2013, the District Court adopted the findings and recommendations of
21 the Magistrate Judge, who found that Petitioner had failed to demonstrate that § 2255 constituted an

22 inadequate or ineffective remedy for raising his sentencing claim and that Petitioner had failed to
23 show that he was actually innocent of the offense. Doc. 13. Both the District Court and the Ninth
24 Circuit Court of Appeals denied Petitioner's request for a certificate of appealability.
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The petition in this action does not allege that Petitioner has obtained an order from the

26 Ninth Circuit authorizing the filing of a successive petition attacking the May 5, 2006 sentence. As
27 a result, this Court lacks jurisdiction to consider the petition and must dismiss it. See Greenawalt,
28 105 F.3d at 1277.
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CERTIFICATE OF APPEALABILITY

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A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district

3 court's denial of his petition, but may only appeal in certain circumstances. Miller-El v. Cockrell,
4 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a certificate of
5 appealability is 28 U.S.C. § 2253, which provides:
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(a) In a habeas corpus proceeding or a proceeding under section 2255 before a district
judge, the final order shall be subject to review, on appeal, by the court of appeals for the
circuit in which the proceeding is held.

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(b) There shall be no right of appeal from a final order in a proceeding to test the validity
of a warrant to remove to another district or place for commitment or trial a person
charged with a criminal offense against the United States, or to test the validity of such
person's detention pending removal proceedings.
(c)

(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the detention
complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.
(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional
right.
(3) The certificate of appealability under paragraph (1) shall indicate which
specific issues or issues satisfy the showing required by paragraph (2).

If a court denies a petitioner's petition, the court may only issue a certificate of appealability

21 "if jurists of reason could disagree with the district court's resolution of his constitutional claims or

22 that jurists could conclude the issues presented are adequate to deserve encouragement to proceed
23 further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). Although the
24 petitioner is not required to prove the merits of his case, he must demonstrate "something more than
25 the absence of frivolity or the existence of mere good faith on his . . . part." Miller-El, 537 U.S. at
26 338.
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In the present case, the Court finds that reasonable jurists would not find the Court's

28 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or
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1 deserving of encouragement to proceed further. Petitioner has not made the required substantial
2 showing of the denial of a constitutional right. Accordingly, the Court declines to issue a certificate
3 of appealability.
CONCLUSION AND RECOMMENDATION

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The undersigned RECOMMENDS that the Court dismiss this successive petition for writ of

6 habeas corpus for lack of jurisdiction.
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These findings and recommendations are submitted to the Honorable Anthony W. Ishii,

8 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule
9 72-304 of the Local Rules of Practice for the United States District Court, Eastern District of
10 California. Within thirty (30) days after being served with a copy, either party may file written
11 objections with the Court, serving a copy on all parties. Such a document should be captioned
12 “Objections to Magistrate Judge’s Findings and Recommendations.” The Court will then review the
13 Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure
14 to file objections within the specified time may waive the right to appeal the District Court’s order.
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15 Martinez v. Ylst, 951 F.2d 1153 (9 Cir. 1991).

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IT IS SO ORDERED.
Dated:

March 11, 2015

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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