Andrade v. Frauenheim

Filing 5

FINDINGS AND RECOMMENDATION TO DISMISS SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2244(b) AND ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT COURT JUDGE TO THE PRESENT MATTER signed by Magistrate Judge Michael J. Seng on 11/15/2016. New Case Number 1:16-cv-01701-DAD-MJS-(HC). Referred to Judge Dale A Drozd; Objections to F&R due by 12/19/2016. (Lundstrom, T)

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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-01701 MJS (HC)
TODD ANTHONY ANDRADE,

FINDINGS AND RECOMMENDATION TO
Petitioner, DISMISS SUCCESSIVE PETITION FOR
WRIT OF HABEAS CORPUS PURSUANT
TO 28 U.S.C. § 2244(b)

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v.

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S. FRAUENHEIM, Warden,

ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT COURT JUDGE TO
THE PRESENT MATTER

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 November 9, 2016, Petitioner challenges an April 15, 2005
conviction in the Superior Court of California, County of Madera for assault with a deadly
weapon on a peace officer, evading a peace officer, and other charges. (Pet., ECF No.
1.) Petitioner was sentenced to an indeterminate state prison term of fifty six (56) years
to life. (Id.)
A review of the Court’s dockets and files shows Petitioner has previously sought
habeas relief with respect to this conviction. In case number 1:07-cv-00784-ALA,

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Petitioner challenged the same underlying conviction. On January 6, 2009, the petition

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was denied on the merits. Petitioner filed a second petition on March 1, 2012, case

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number 1:12-cv-00305 AWI MJS, challenging the same conviction. The petition was

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denied as successive on August 9, 2012.

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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, 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:

November 15, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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