Tucker v. Paramo

Filing 16

ORDER Vacating November 17, 2015 Findings and Recommendation 14 ; FINDINGS and RECOMMENDATION Regarding 15 Second Amended Petition for Writ of Habeas Corpus, signed by Magistrate Judge Stanley A. Boone on 12/29/15. Referred to Judge Ishii; 14-Day Deadline. (Verduzco, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 GERALD TUCKER, 12 13 14 15 Case No. 1:15-cv-01164-AWI-SAB-HC Petitioner, ORDER VACATING NOVEMBER 17, 2015 FINDINGS AND RECOMMENDATION v. FINDINGS AND RECOMMENDATION REGARDING SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS DANIEL PARAMO, Respondent. 16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 I. 20 BACKGROUND 21 Petitioner filed the instant petition for writ of habeas corpus on July 22, 2015. On August 22 20, 2015, the Court issued a findings and recommendation recommending that the petition be 23 dismissed as successive. (ECF No. 7). On September 10, 2015, Petitioner filed a first amended 24 petition. (ECF No. 11). On September 24, 2015, the Court vacated the August 20, 2015 findings 25 and recommendation, dismissed the petition and first amended petition with leave to amend, and 26 granted Petitioner leave to file a second amended petition within thirty days from the date of 27 service of that order. (ECF No. 12). This was based on the difficulty of determining which state 28 court conviction and judgment Petitioner is challenging in this action. Petitioner failed to respond 1 1 to the Court’s order within the thirty-day deadline. Thus, on November 17, 2014, the Court 2 issued a findings and recommendation recommending that this action be dismissed for failure to 3 comply with the Court’s order. (ECF No. 14). On December 4, 2015, Petitioner filed objections to the November 17, 2015 findings and 4 5 recommendations. (ECF No. 15). Attached to Petitioner’s objections is a second amended 6 petition, which appears to be a copy of the petition submitted on November 2, 2015, by 7 Petitioner in his other habeas action pending in this district, Tucker v. Paramo, Case No. 1:15-cv8 1664-DAD-JLT.1 9 II. 10 DISCUSSION For purposes of judicial efficiency, the Court will review Petitioner’s untimely second 11 12 amended petition, which states that Petitioner is challenging his 1998 conviction in Fresno 13 County Superior Court for failure to register as a sex offender. Petitioner previously filed prior 14 federal petitions for writ of habeas corpus in this district with respect to his 1998 conviction. See 15 Tucker v. Garcia, Case No. 1:03-cv-05594-AWI-TAG (dismissed the petition because Petitioner 16 was no longer “in custody” under the 1998 conviction); Tucker v. Yates, Case No. 1:12-cv17 00643-LJO-JLT (dismissed as unauthorized successive petition). Rule 4 of the Rules Governing Section 2254 Cases allows a district court to dismiss a 18 19 petition if it “plainly appears from the petition and any attached exhibits that the petitioner is not 20 entitled to relief in the district court . . . .” Rule 4 of the Rules Governing Section 2254 Cases. A federal court must dismiss a second or successive petition that raises the same grounds 21 22 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 23 petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, 24 retroactive, constitutional right or (2) the factual basis of the claim was not previously 25 discoverable through due diligence, and these new facts establish by clear and convincing 26 evidence that but for the constitutional error, no reasonable factfinder would have found the 27 28 1 The Court notes that the Magistrate Judge in Case No. 1:15-cv-1664-DAD-JLT issued findings and recommendations recommending that the petition be dismissed as an unauthorized successive petition on November 5, 2015. 2 1 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the 2 district court that decides whether a second or successive petition meets these requirements. 3 Section 2244(b)(3)(A) provides: “Before a second or successive application permitted by 4 this section is filed in the district court, the applicant shall move in the appropriate court of 5 appeals for an order authorizing the district court to consider the application.” In other words, 6 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 7 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must 8 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave 9 to file the petition because a district court lacks subject-matter jurisdiction over a second or 10 successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). 11 Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit to 12 file his successive petition. As previously stated, Petitioner previously filed federal petitions for 13 writ of habeas corpus in this Court challenging his 1998 conviction for failure to register as a sex 14 offender. See Tucker v. Garcia, Case No. 1:03-cv-05594-AWI-TAG; Tucker v. Yates, Case No. 15 1:12-cv-00643-LJO-JLT. The petitions challenging the 1998 conviction were dismissed. As 16 Petitioner has not obtained prior leave from the Ninth Circuit to file this successive petition, this 17 Court has no jurisdiction to consider Petitioner's renewed application for relief under 28 U.S.C. § 18 2254 and must dismiss the petition. See Burton, 549 U.S. at 157. 19 II. 20 ORDER AND RECOMMENDATION 21 Accordingly, IT IS HEREBY ORDERED that the November 17, 2015 Findings and 22 Recommendation is VACATED. 23 IT IS HEREBY RECOMMENDED that the petition for writ of habeas corpus be 24 DISMISSED as successive. 25 This Findings and Recommendation is submitted to the assigned United States District 26 Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 27 Rules of Practice for the United States District Court, Eastern District of California. Within 28 fourteen (14) days after service of the Findings and Recommendation, Petitioner may file written 3 1 objections with the Court and serve a copy on all parties. Such a document should be captioned 2 “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned District Judge 3 will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). Petitioner is 4 advised that failure to file objections within the specified time may result in the waiver of rights 5 on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 6 923 F.2d 1391, 1394 (9th Cir. 1991)). 7 8 IT IS SO ORDERED. 9 Dated: December 29, 2015 UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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