Mike Toscano v. Kernan

Filing 5

ORDER DISMISSING Petition as Second or Successive 1 , signed by Magistrate Judge Sheila K. Oberto on 10/30/17: The petition for writ of habeas corpus is hereby DISMISSED as a second or successive petition. The Court declines to issue a certificate of appealability. The dismissal, however, is without prejudice for Petitioner to seek leave to file a second or successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A). (CASE CLOSED)(Hellings, J)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MIKE TOSCANO,

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Petitioner,

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No. 1:17-cv-01263-SKO HC
ORDER DISMISSING PETITION
AS SECOND OR SUCCESSIVE

v.
SCOTT KERNAN,
(Doc. 1)

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Respondent.

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Screening Order

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Petitioner Mike Toscano is a state prisoner proceeding pro se with a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254.1 The petition alleges seven claims: unauthorized
sentence; four claims for denial of due process; denial of liberty interest; and ineffective
assistance of counsel. Because Petitioner has filed a previous habeas petition concerning the
same conviction, the Court is required to dismiss the petition as second or successive.
I.

A jury convicted Petitioner of violating California Penal Code § 288(a) in Kings County

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Procedural and Factual Background

Superior Court in the year 2000. See People v. Toscano, 2001 WL 1488627 (Cal. App. Nov. 26,
2001) (No. F035754). The state court sentenced Petitioner to an indeterminate term of 25 years
to life in prison. Id. Following a direct appeal, Petitioner unsuccessfully sought habeas relief in

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Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented, in writing, to the jurisdiction of a United States Magistrate
Judge to conduct all further proceedings in this case, including the entry of final judgment.

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California state courts.

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On October 30, 2006, Petitioner filed a federal habeas petition. Toscano v. Hedgpeth,
2007 WL 1725663 OWW-SMS (E.D. Cal June 14, 2007). The Court dismissed the petition as
untimely. Petitioner filed the above-captioned petition on September 21, 2017.
II.

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Rule 4 of the Rules Governing § 2254 cases requires the Court to conduct a preliminary
review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it
plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the
Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).
A petition for habeas corpus should not be dismissed without leave to amend unless it appears
that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson,
440 F.2d 13, 14 (9th Cir. 1971).
III.

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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

successive petition satisfies the statutory requirements to proceed. 28 U.S.C. § 2244(b)(3)(A)
("Before a second or successive petition permitted by this section is filed in the district court, the
applicant shall move in the appropriate court of appeals for an order authorizing the district court
to consider the application"). This means that a petitioner may not file a second or successive
petition in district court until he has obtained leave from the court of appeals. Felker v. Turpin,
518 U.S. 651, 656-57 (1996). In the absence of an order from the appropriate circuit court, a
district court lacks jurisdiction over the petition and must dismiss the second or successive
petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997).

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Preliminary Screening

Petitioner has not secured leave from the Ninth Circuit Court of Appeals to file the abovecaptioned petition. Accordingly, the Court must dismiss it for lack of jurisdiction.
III.

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

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). Title 28 U.S.C. § 2253, the controlling statute in
determining whether to issue a certificate of appealability, 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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//

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Reasonable jurists would not find the Court's determination that the petition is a second or
successive petition to be debatable or wrong, or conclude that the issues presented required
further adjudication. Accordingly, the Court should decline to issue a certificate of appealability.

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IV.

Conclusion and Order

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The petition for writ of habeas corpus is hereby DISMISSED as a second or successive

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petition. The Court declines to issue a certificate of appealability. The dismissal, however, is

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without prejudice for Petitioner to seek leave to file a second or successive petition pursuant to 28

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U.S.C. § 2244(b)(3)(A).

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IT IS SO ORDERED.

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Dated:

October 30, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE
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