Hernandez v. Spearman

Filing 7

FINDINGS and RECOMMENDATIONS to Dismiss Successive 1 Petition for Writ of Habeas Corpus; ORDER DIRECTING Clerk of Court to Assign District Judge signed by Magistrate Judge Jennifer L. Thurston on 12/11/2017. Referred to Judge Anthony W. Ishii. Twenty-One Day Objection Deadline. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JOSE DE JESUS HERNANDEZ,

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Case No. 1:17-cv-01625-JLT (HC)

Petitioner,

FINDINGS AND RECOMMENDATION TO
DISMISS SUCCESSIVE PETITION FOR
WRIT OF HABEAS CORPUS

v.
M. E. SPEARMAN,

ORDER DIRECTING CLERK OF COURT
TO ASSIGN DISTRICT JUDGE

Respondent.
[TWENTY-ONE DAY OBJECTION
DEADLINE]

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On December 1, 2017, Petitioner filed the instant petition for writ of habeas corpus in this

19 Court. Because the petition is successive, the Court will recommend it be DISMISSED.
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PROCEDURAL BACKGROUND
On September 26, 2007, Petitioner was convicted in the Tulare County Superior Court of:

22 first degree felony murder with a robbery/burglary special circumstance; attempted murder of a
23 peace officer with a special allegation that the offense occurred while the officer was engaged in
24 the performance of his duties; four counts of second degree robbery with personal use of a
25 firearm; three counts of second degree commercial burglary; conspiracy to commit robbery;
26 unlawfully taking or driving a vehicle; and receiving a stolen vehicle. He is serving a sentence
27 of life without the possibility of parole.
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The instant petition challenges the 2007 conviction and raises the following claims for

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1 relief: 1) Ineffective assistance of counsel due to failure to raise claims on appeal; 2) Evidence
2 was insufficient to support the conviction for first degree felony murder; 3) An ambiguous jury
3 instruction on felony murder unconstitutionally relieved the state of its burden of proof of an
4 element of the crime; 4) The evidence does not support a finding that the attempted murder is a
5 reasonably foreseeable natural and probable consequence; 5) The trial court’s denial to continue
6 the trial violated Petitioner’s due process rights and his right to prepare a defense for trial; and 6)
7 The court imposed an illegal and excessive restitution fine.
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The instant petition is not Petitioner’s first federal petition. On February 25, 2010,

9 Petitioner filed a federal petition for writ of habeas corpus in this Court challenging the same
10 conviction. See Hernandez v. New Folsom State Prison Warden, Case No.: 1:10-cv-00391-LJO11 JLT (HC). The District Court denied the petition on the merits on May 11, 2012. Petitioner
12 appealed to the Ninth Circuit Court of Appeals on May 30, 2012, and the appellate court denied
13 the appeal on July 25, 2013.
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DISCUSSION
A federal court must dismiss a second or successive petition that raises the same grounds

16 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive
17 petition raising a new ground unless the petitioner can show that 1) the claim rests on a new,
18 retroactive, constitutional right or 2) the factual basis of the claim was not previously
19 discoverable through due diligence, and these new facts establish by clear and convincing
20 evidence that but for the constitutional error, no reasonable factfinder would have found the
21 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the
22 district court that decides whether a second or successive petition meets these requirements.
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Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by

24 this section is filed in the district court, the applicant shall move in the appropriate court of
25 appeals for an order authorizing the district court to consider the application." In other words,
26 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive
27 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must
28 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave

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1 to file the petition because a district court lacks subject-matter jurisdiction over a second or
2 successive petition. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d
3 1270, 1274 (9th Cir. 2001).
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Because the current petition was filed after April 24, 1996, the provisions of the

5 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current
6 petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that he has
7 obtained prior leave from the Ninth Circuit to file his successive petition attacking the
8 conviction.

That being so, this Court has no jurisdiction to consider Petitioner's renewed

9 application for relief from that conviction under Section 2254 and must dismiss the petition. See
10 Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991.
ORDER

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Accordingly, the Clerk of Court is DIRECTED to assign a District Judge to this case.
RECOMMENDATION

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For the foregoing reasons, the Court RECOMMENDS that the petition be DISMISSED

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This Findings and Recommendation is submitted to the United States District Court

17 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and
18 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of
19 California. Within twenty-one days after being served with a copy, Petitioner may file written
20 objections with the Court. Such a document should be captioned “Objections to Magistrate
21 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s
22 ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections
23 within the specified time may waive the right to appeal the District Court’s order. Martinez v.
24 Ylst, 951 F.2d 1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:

December 11, 2017

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

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