Phinehas L. Parker v. Rackley
FINDINGS and RECOMMENDATIONS Recommending Dismissal of Petition for Writ of Habeas Corpus, signed by Magistrate Judge Stanley A. Boone on 8/31/17. Objections to F&R Due Within Thirty Days. (Marrujo, C)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
PHINEHAS L. PARKER,
Case No. 1:17-cv-00876-LJO-SAB-HC
FINDINGS AND RECOMMENDATION
RECOMMENDING DISMISSAL OF
PETITION FOR WRIT OF HABEAS
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
18 pursuant to 28 U.S.C. § 2254.
Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a
22 habeas petition and allows a district court to dismiss a petition before the respondent is ordered
23 to file a response, if it “plainly appears from the petition and any attached exhibits that the
24 petitioner is not entitled to relief in the district court.”
A federal court must dismiss a second or successive petition that raises the same grounds
26 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive
27 petition raising a new ground unless the petitioner can show that (1) the claim rests on a new,
28 retroactive, constitutional right or (2) the factual basis of the claim was not previously
1 discoverable through due diligence, and these new facts establish by clear and convincing
2 evidence that but for the constitutional error, no reasonable factfinder would have found the
3 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)–(B).
However, it is not the district court that decides whether a second or successive petition
5 meets these requirements. Section 2244(b)(3)(A) provides: “Before a second or successive
6 application permitted by this section is filed in the district court, the applicant shall move in the
7 appropriate court of appeals for an order authorizing the district court to consider the
8 application.” In other words, Petitioner must obtain leave from the Ninth Circuit before he can
9 file a second or successive petition in the district court. See Felker v. Turpin, 518 U.S. 651, 656–
10 657 (1996). This Court must dismiss any second or successive petition unless the Court of
11 Appeals has given Petitioner leave to file the petition because a district court lacks subject-matter
12 jurisdiction over a second or successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007).
In the instant petition, Petitioner challenges his 1999 convictions and sentence in the
14 Stanislaus County Superior Court for attempted murder, robbery, assault with a weapon, and
15 burglary. (ECF No. 1 at 2, 11).1 Petitioner previously filed a federal habeas petition in this Court
16 challenging the same convictions and sentence, which was denied on the merits. See Parker v.
17 Knowles, No. 1:04-cv-05783-OWW-SMS.2 The Court finds that the instant petition is “second
18 or successive” under § 2244(b). Petitioner makes no showing that he has obtained prior leave
19 from the Ninth Circuit to file this petition. As Petitioner has not obtained prior leave from the
20 Ninth Circuit to file this successive petition, this Court has no jurisdiction to consider
21 Petitioner’s renewed application for relief under 28 U.S.C. § 2254 and must dismiss the petition.
22 See Burton, 549 U.S. at 157.
Accordingly, IT IS HEREBY RECOMMENDED that the petition for writ of habeas
26 corpus be DISMISSED as successive.
Page numbers refer to the ECF page numbers stamped at the top of the page.
The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119
(9th Cir. 1980).
This Findings and Recommendation is submitted to the United States District Court
2 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304
3 of the Local Rules of Practice for the United States District Court, Eastern District of California.
4 Within THIRTY (30) days after service of the Findings and Recommendation, Petitioner may
5 file written objections with the Court and serve a copy on all parties. Such a document should be
6 captioned “Objections to Magistrate Judge’s Findings and Recommendation.” The assigned
7 District Judge will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C.
8 § 636(b)(1)(C). Petitioner is advised that failure to file objections within the specified time may
9 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014)
10 (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
August 31, 2017
UNITED STATES MAGISTRATE JUDGE
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