Lupercio v. Sherman
Filing
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FINDINGS and RECOMMENDATION to Dismiss Successive 1 Petition for Writ of Habeas Corpus Pursuant to 28 USC 2244(b); ORDER Directing Clerk of Court to Assign District Court Judge to Present Matter, signed by Magistrate Judge Michael J. Seng on 6/19/15. Rferred to Judge Ishii. Thirty Day Deadline. (Gonzalez, R)
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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-00915 MJS (HC)
RAMON NAVARRO LUPERCIO,
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v.
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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STU SHERMAN, 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.
In the petition filed on June 17, 2015, Petitioner challenges an October 13, 2003
conviction in the Superior Court of California, County of Tulare for attempted murder with
use of a firearm. Petitioner was sentenced to an indeterminate state prison term of thirty
two (32) years to life.
A review of the Court’s dockets and files shows Petitioner has previously sought
habeas relief with respect to this conviction. In case number 1:08-cv-00012-LJO-JLT
(HC), Petitioner challenged the same underlying conviction. On January 22, 2009, the
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petition was denied as untimely.1 See Lupercio v. Gonzalez, E.D. Cal. Case No. 1:08-cv-
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00012-LJO-JLT (HC), ECF Nos. 15, 18.
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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
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District 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).
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The parties are advised that failure to file objections within the specified time may
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waive the right to appeal the District Court's order. Wilkerson v. Wheeler, 772 F.3d 834,
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839 (9th Cir. 2014).
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IT IS SO ORDERED.
Dated:
June 19, 2015
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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