Faulkner v. Spearman

Filing 9

FINDINGS and RECOMMENDATION That Court Dismiss Petition as Second or Successive 1 , signed by Magistrate Judge Sheila K. Oberto on 6/12/17: 30-Day Deadline. (Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KENNETH LEWIS FAULKNER,
Petitioner,

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v.

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No. 1:17-cv-00695-DAD-SKO HC
FINDINGS AND RECOMMENDATION
THAT COURT DISMISS PETITION AS
SECOND OR SUCCESSIVE

M. ELIOT SPEARMAN, Warden, High
Desert State Prison,

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Respondent.

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Petitioner Kenneth Lewis Faulkner is a state prisoner proceeding pro se with a petition for

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner raises multiple grounds for relief

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arising from his 2006 trial in Kern County. Because Petitioner has filed previous habeas petitions

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concerning the same conviction, the Court is required to dismiss the petition as secondary or

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successive. The undersigned recommends that it do so.

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I.

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Procedural and Factual Background
On February 8, 2006, following a jury trial in Kern County Superior Court, Petitioner was

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convicted of one felony count of annoying or molesting a child under the age of eighteen (Cal.

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Penal Code § 647.6(c)(1)) and two misdemeanor counts of annoying or molesting a child under

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the age of eighteen (Cal. Penal Code § 647.6). The California Court of Appeal affirmed

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Petitioner’s conviction and sentence on November 16, 2007. The California Supreme Court

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denied review on February 27, 2008.

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On May 14, 2008, Petitioner filed a federal petition for writ of habeas corpus pursuant to

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28 U.S.C. § 2254. See Faulkner v. Mule Creek State Prison (E.D. Cal.) (No. 1:08-cv-00806-JMD

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HC), Doc. 1. The Court denied the petition with prejudice on October 21, 2009. Id., Doc. 31.

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On July 14, 2011, Petitioner filed a second § 2254 petition. See Faulkner v. Knipp (E.D.

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Cal.) (No. 1:11-cv-01163-LJO-MJS HC) Doc. 1. On November 22, 2011, the Court dismissed

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the petition as second or successive and declined to issue a certificate of appealability. Id., Doc.

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13. Petitioner sought to file a notice of appeal in the U.S. Court of Appeal for the Ninth Circuit,

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which also denied a certificate of appeal.

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Petitioner filed the above-captioned petition on May 19, 2017. On June 1, 2017,

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Petitioner filed another, substantially similar, petition. Faulkner v. Davies (E.D. Cal.) (No. 1:17-

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cv-00752-JLT HC).

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II.

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No District Court Jurisdiction Over a Second or Successive Petition
The circuit court of appeals, not the district court, must decide whether a second or

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successive petition satisfies the statutory requirements to proceed. 28 U.S.C. § 2244(b)(3)(A)

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("Before a second or successive petition permitted by this section is filed in the district court, the

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applicant shall move in the appropriate court of appeals for an order authorizing the district court

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to consider the application"). This means that a petitioner may not file a second or successive

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petition in district court until he has obtained leave from the court of appeals. Felker v. Turpin,

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518 U.S. 651, 656-57 (1996). In the absence of an order from the appropriate circuit court, a

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district court lacks jurisdiction over the petition and must dismiss the second or successive

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petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997).

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Petitioner has not secured leave from the Ninth Circuit Court of Appeals to file the above-

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captioned petition. Accordingly, the Court must dismiss it for lack of jurisdiction.

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III.

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Certificate of Appealability
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v.

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Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a

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certificate of appealability is 28 U.S.C. § 2253, which provides:
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(a) In a habeas corpus proceeding or a proceeding under section 2255
before a district judge, the final order shall be subject to review, on appeal, by
the court of appeals for the circuit in which the proceeding is held.

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(b) There shall be no right of appeal from a final order in a proceeding
to test the validity of a warrant to remove to another district or place for
commitment or trial a person charged with a criminal offense against the
United States, or to test the validity of such person's detention pending
removal proceedings.

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(c) (1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from—

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(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court; or

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(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the denial of a
constitutional right.

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(3) The certificate of appealability under paragraph (1) shall
indicate which specific issues or issues satisfy the showing required by
paragraph (2).

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If a court denies a habeas petition, the court may only issue a certificate of appealability

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"if jurists of reason could disagree with the district court's resolution of his constitutional claims

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or that jurists could conclude the issues presented are adequate to deserve encouragement to
proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Although the petitioner is not required to prove the merits of his case, he must demonstrate

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"something more than the absence of frivolity or the existence of mere good faith on his . . .

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part." Miller-El, 537 U.S. at 338.

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Reasonable jurists would not find the Court's determination that the petition is a second or

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successive petition to be debatable or wrong, or conclude that the issues presented require further

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adjudication. Accordingly, the Court should decline to issue a certificate of appealability.

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IV.

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Conclusion and Recommendation
The undersigned recommends that the Court dismiss the Petition for writ of habeas corpus

as second or successive and decline to issue a certificate of appealability. Despite the denial of a
certificate of appealability, the dismissal is without prejudice to Petitioner’s seeking leave to file a

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second or successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A).
These Findings and Recommendations will be submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty

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(30) days after being served with these Findings and Recommendations, Petitioner may file

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written objections with the Court. The document should be captioned AObjections to Magistrate
Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and

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filed within fourteen (14) days after service of the objections. The parties are advised that failure
to file objections within the specified time may constitute waiver of the right to appeal the District

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Court's order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v.

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Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.

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Dated:

June 12, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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