Gentery v. Sherman
Filing
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FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus be DISMISSED as successive; Further, the Court Orders the Clerk of Court to assign a District Court Judge to the instant matter; New case number is 1:16-cv-85 LJO-MJS (HC); re 1 Petition for Writ of Habeas Corpus filed by Jerome Lamar Gentery ; referred to Judge O'Neill,signed by Magistrate Judge Michael J. Seng on 01/23/2016. Objections to F&R due by 2/29/2016 (Martin-Gill, S)
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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. 1:16-cv-00085 MJS (HC)
JEROME LAMAR GENTERY,
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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.
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In the petition filed on January 14, 2016, Petitioner challenges a sentence
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imposed in the Kern County Superior Court on July 23, 1997 for murder and attempted
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murder with great bodily injury and firearm enhancements. (Pet., ECF No. 1 at 1.)
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Petitioner was sentenced to an indeterminate state prison term of sixty-one (61) years
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and four months to life. In the petition, Petitioner challenges his convictions, alleging that
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he suffered violations of his constitutional rights in the course of the trial and appellate
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proceedings related to his commitment offenses.
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A review of the Court’s dockets and files shows Petitioner has previously sought
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habeas relief with respect to this conviction. In Jerome Lamar Gentery v. Cheryl Pliler,
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E.D. Cal. Case No. 1:99-cv-06414-AWI-HGB, on May 9, 2000, the Court denied on the
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merits Petitioner’s petition for writ of habeas corpus that challenged the same judgment
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of the Kern County Superior Court. (See ECF Nos. 11, 17-18.) Additionally in case
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number 1:14-cv-00212-AWI-BAM (HC), Petitioner again challenged his underlying
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convictions. On April 4, 2014, the petition was denied as a successive petition. See
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Jermoe Lamar Gentery v. Rick Hill, E.D. Cal. Case No. 1:14-cv-00212-AWI-BAM (HC),
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ECF Nos. 12, 14.
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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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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 District
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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,
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Petitioner may file written objections with the Court and serve a copy on all parties. Such
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a document should be captioned "Objections to Magistrate Judge's Findings and
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Recommendations." The Court will then review the Magistrate Judge's ruling pursuant to
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28 U.S.C. § 636 (b)(1)(c). Petitioner is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court's order. Wilkerson v.
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Wheeler, 772 F.3d 834, 839 (9th Cir. 2014).
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IT IS SO ORDERED.
Dated:
January 23, 2016
/s/
Michael J. Seng
UNITED STATES MAGISTRATE JUDGE
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