Jacobsen v. Mimms

Filing 4

FINDINGS and RECOMMENDATION to Dismiss Successive 1 Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Assign District Judge; Twenty-One Day Objection Deadline signed by Magistrate Judge Jennifer L. Thurston on 1/31/2017. Referred to Judge Anthony W. Ishii. The new case number is 1:17-cv-00128-AWI-JLT(HC). (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 MICHAEL JACOBSEN, Petitioner, 12 FINDINGS AND RECOMMENDATION TO DISMISS SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS v. 13 14 Case No. 1:17-cv-00128-JLT (HC) SHERIFF MARGARET MIMMS, 15 16 17 ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE Respondent. [TWENTY-ONE DAY OBJECTION DEADLINE] On January 27, 2017, Petitioner filed the instant petition for writ of habeas corpus in this Court. 18 Because the petition is successive, the Court will recommend it be DISMISSED. 19 20 PROCEDURAL BACKGROUND On January 7, 2003, Petitioner was convicted in the Fresno County Superior Court after pleading 21 no contest to one count of felony domestic violence. He also admitted that he had personally used a 22 knife in the commission of the offense and that he had personally inflicted great bodily injury on the 23 victim. 24 The instant petition challenges the 2003 conviction and raises two claims for relief. He alleges 25 the conviction was wrongly obtained after the prosecution’s investigator lied on the stand at the 26 preliminary hearing. He also claims his plea of no contest should not have been accepted by the trial 27 court because he was being represented by a firm that had previously conflicted out. 28 The instant petition is not Petitioner’s first federal petition. On September 13, 2006, Petitioner 1 1 filed a federal petition for writ of habeas corpus in this Court challenging the same conviction. See 2 Jacobsen v. Evans, Case No.: 1:06-cv-01254-LJO-WMW (HC). The petition raised one claim of 3 ineffective assistance of counsel and concerned the entry of plea. The District Court dismissed the 4 petition on February 6, 2008, as barred by the statute of limitations. Petitioner appealed to the Ninth 5 Circuit Court of Appeals on March 4, 2008, and the appellate court denied the appeal on November 7, 6 2008. 7 8 DISCUSSION A federal court must dismiss a second or successive petition that raises the same grounds as a 9 prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive petition 10 raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, 11 constitutional right or 2) the factual basis of the claim was not previously discoverable through due 12 diligence, and these new facts establish by clear and convincing evidence that but for the constitutional 13 error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 14 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a second or 15 successive petition meets these requirements. 16 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by this 17 section is filed in the district court, the applicant shall move in the appropriate court of appeals for an 18 order authorizing the district court to consider the application." In other words, Petitioner must obtain 19 leave from the Ninth Circuit before he can file a second or successive petition in district court. See 20 Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or successive 21 petition unless the Court of Appeals has given Petitioner leave to file the petition because a district court 22 lacks subject-matter jurisdiction over a second or successive petition. Burton v. Stewart, 549 U.S. 147, 23 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). 24 Because the current petition was filed after April 24, 1996, the provisions of the Antiterrorism 25 and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current petition. Lindh v. 26 Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that he has obtained prior leave from 27 the Ninth Circuit to file his successive petition attacking the conviction. That being so, this Court has no 28 jurisdiction to consider Petitioner's renewed application for relief from that conviction under Section 2 1 2254 and must dismiss the petition. See Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991. ORDER 2 3 Accordingly, the Clerk of Court is DIRECTED to assign a District Judge to this case. RECOMMENDATION 4 5 For the foregoing reasons, the Court RECOMMENDS that the petition be DISMISSED as 6 successive. 7 This Findings and Recommendation is submitted to the United States District Court Judge 8 assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and Rule 304 of the 9 Local Rules of Practice for the United States District Court, Eastern District of California. Within 10 twenty-one days after being served with a copy, Petitioner may file written objections with the Court. 11 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 12 Recommendation.” The Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 13 636 (b)(1)(C). Petitioner is advised that failure to file objections within the specified time may waive 14 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 16 17 IT IS SO ORDERED. Dated: January 31, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 18 19 20 21 22 23 24 25 26 27 28 3

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