Tucker v. Paramo
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 6/16/2015. Referred to Judge Lawrence J. O'Neill; Objections to F&R due by 7/10/2015. (Sant Agata, S)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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GERALD L. TUCKER,
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Plaintiff,
v.
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DANIEL PARAMO,
Defendant.
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Case No.: 1:15-cv-00829-JLT
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
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In the course of conducting a preliminary screening of this petition, the Court has determined
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that Petitioner previously filed at least two federal habeas petitions challenging this same conviction.
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In case no. 1:04-cv-05662-OWW-DLB, the petition was denied on its merits. This petition
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challenged the same conviction Petitioner attacks in this petition. Again, in case no. 1:13-cv-01534-
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AWI-BAM, Petitioner challenged the same conviction and that petition was denied as successive.
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I.
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. [§ 2254]
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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).
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). As discussed above, Petitioner has twice before filed petitions in
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this court seeking to challenge the same conviction as that in the instant petition. On the first
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occasion, the petition was denied on the merits. On the second occasion, it was denied as successive.
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Here, Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to file this
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successive petition attacking his conviction. That being so, this Court has no jurisdiction to consider
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Petitioner's renewed application for relief from that conviction under § 2254 and must dismiss the
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petition. See Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. If Petitioner desires to proceed in
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bringing this petition for writ of habeas corpus, he must first file for leave to do so with the Ninth
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Circuit. See 28 U.S.C. § 2244 (b)(3).
ORDER
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For the foregoing reasons, the Clerk of the Court is DIRECTED to assign a United States
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 21 days
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after being served with a copy of this Findings and Recommendation, any party may file written
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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 days after service of the Objections. The Court will then review the
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Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The parties are advised that failure to
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file objections within the specified time may waive the right to appeal the Order of the District Court.
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Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
June 16, 2015
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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