Kendall v. Tampkins
Filing
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FINDINGS and RECOMMENDATIONS to Dismiss Petition for Writ of Habeas Corpus as 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 11/16/15. (Hellings, J)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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LEROY E. KENDALL,
Petitioner,
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v.
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CYNTHIA TAMPKINS,
Respondent.
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Case No.: 1:15-cv-01703-JLT
FINDINGS AND RECOMMENDATIONS TO
DISMISS PETITION FOR WRIT OF HABEAS
CORPUS AS 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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Petitioner has previously filed a petition in this Court, i.e., case number 1:13-cv-00209-LJO-
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JLT, on February 8, 2013 in which he challenged the same conviction at issue in the current petition.
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In the earlier matter, the Court denied the petition on its merits on October 30, 2015. Because the
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current petition is successive and Petitioner has not demonstrated that the Ninth Circuit Court of
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Appeals has granted him permission to proceed on a successive petition, the Court recommends the
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matter be DISMISSED.
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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 if
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it “plainly appears from the face of the petition and any exhibits annexed to it that the petitioner is not
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entitled to relief in the district court . . . .” The Advisory Committee Notes to Rule 8 indicate that the
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court may dismiss a petition for writ of habeas corpus, either on its own motion under Rule 4, pursuant
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to the respondent’s motion to dismiss, or after an answer to the petition has been filed. Herbst v. Cook,
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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).
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However, it is not the district court that decides whether a second or successive petition
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meets these requirements that allow a petitioner to file a second or successive petition, but rather
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the Ninth Circuit. 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 appropriate court
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of appeals for an order authorizing the district court to consider the application." In other words,
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Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive petition in
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district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any
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second or successive petition unless the Court of Appeals has given Petitioner leave to file the petition
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because a district court lacks subject-matter jurisdiction over a second or successive petition. Pratt v.
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United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir.
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1997), cert. denied, 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 mentioned, Petitioner previously filed a federal petition in this
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Court challenging the same 2010 Kern County Superior Court conviction, and this Court denied the
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petition on its merits. Petitioner makes no showing that he has obtained prior leave from the Ninth
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Circuit to file this successive petition attacking the same conviction. That being so, this Court has no
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jurisdiction to consider Petitioner's renewed application for relief from that conviction under § 2254
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and must dismiss the petition. See Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. If Petitioner
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desires to proceed in bringing this petition for writ of habeas corpus, he must first file for leave to do so
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with the Ninth Circuit. See 28 U.S.C. § 2244 (b)(3).
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ORDER
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For the foregoing reasons, the Clerk of the Court is DIRECTED to assign a United States
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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.” 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:
November 16, 2015
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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