King v. Fisher

Filing 11

FINDINGS and RECOMMENDATIONS for Dismissal of Petitioner as Second or Successive; Court Clerk to Assign District Judge signed by Magistrate Judge Sheila K. Oberto on 05/22/2018. Referred to Judge Drozd; Objections to F&R due by 6/25/2018. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ALTON KING,

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Petitioner,

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No. 1:18-cv-00659-SKO HC

v.

FINDINGS AND RECOMMENDATIONS
FOR DISMISSAL OF PETITIONER AS
SECOND OR SUCCESSIVE

WARDEN RAYTHEL FISHER,

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Respondent.

COURT CLERK TO ASSIGN DISTRICT
JUDGE

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(Doc. 1)

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Screening Order

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Petitioner, Alton King, 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. The petition alleges one claim for habeas relief: the

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state court erred in calculating his credits. Because Petitioner has filed two previous habeas

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petitions concerning the same conviction, the Court will recommend dismissing the petition as

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second or successive.

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I.

Procedural and Factual Background

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Petitioner was convicted in Santa Clara County Superior Court of continuous sexual abuse

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of a child under fourteen years of age (Cal. Penal Code § 288.5(a)) and committing a lewd and
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lascivious act on a child under fourteen (Cal. Penal Code § 288(a)).

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H032896, 2009 WL 4818067 (Cal. Ct. App. Dec. 15, 2009). Petitioner was sentenced to a prison

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term of 18 years. Id.

People v. King, No.

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On June 7, 2011, Petitioner filed a petition for federal habeas relief pursuant to 28 U.S.C §

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2254, which the Court denied. King v. Adams, No. C 11-02792-SI, 2014 WL 4646581 (N.D. Cal.

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Aug. 26, 2014). Petitioner filed the above-captioned petition on April 2, 2018 in the United

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States District Court for the Northern District of California. The case was transferred to this

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Court on May 15, 2018.

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II.

Preliminary Screening

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Rule 4 of the Rules Governing § 2254 cases requires the Court to conduct a preliminary

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review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it

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plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the

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Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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A petition for habeas corpus should not be dismissed without leave to amend unless it appears

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that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson,

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440 F.2d 13, 14 (9th Cir. 1971).

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III.

No District Court Jurisdiction Over a Second or Successive Petition

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

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.
(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—
(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
(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
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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 required

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further adjudication. Accordingly, the Court recommends declining to issue a certificate of

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appealability.
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IV.

Based on the foregoing, the undersigned hereby recommends that the Court dismiss the

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Recommendation and Order

petition in this action as second or successive and decline to issue a certificate of appealability.

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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, either party 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

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to file objections within the specified time may constitute waiver of the right to appeal the District

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Court's order.

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

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

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The Court Clerk is hereby directed to assign a district judge to this action.
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IT IS SO ORDERED.

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Dated:

May 22, 2018

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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