Oden v. Gastelo

Filing 11

ORDER Directing Clerk of Court to Assign Case to District Judge; FINDINGS and RECOMMENDATIONS to Dismiss Unauthorized Successive Petition for Writ of Habeas Corpus (Doc. 1 ) for Lack of Jurisdiction signed by Magistrate Judge Jeremy D. Peterson o n 5/14/2019. This case has been assigned to Chief Judge Lawrence J. O'Neill and Magistrate Judge Jeremy D. Peterson. The new case number is 1:18-cv-00772-LJO-JDP (HC). Referred to Judge O'Neill. Objections to F&R due within fourteen (14) days. (Jessen, A)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILBERT J. ODEN,

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Petitioner,
v.

Case No. 1:18-cv-00772-JDP (HC)
FINDINGS AND RECOMMENDATIONS TO
DISMISS UNAUTHORIZED SUCCESSIVE
PETITION FOR WRIT OF HABEAS
CORPUS FOR LACK OF JURISDICTION

J. GASTELO,
ECF No. 1
Respondent.
OBJECTIONS DUE IN 14 DAYS
ORDER DIRECTING CLERK OF COURT TO
ASSIGN CASE TO DISTRICT JUDGE

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Petitioner Wilbert J. Oden, a state prisoner without counsel, seeks a writ of habeas corpus

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under 28 U.S.C. § 2254. He claims that the state trial court lacked statutory authority to sentence

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him for second-degree murder. The matter is before the court for preliminary review under Rule

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4 of the Rules Governing Section 2254 Cases. Under Rule 4, a district court must dismiss a

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habeas petition if it “plainly appears” that the petitioner is not entitled to relief. Petitioner

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unsuccessfully pursued another Section 2254 petition in 2009, challenging the same state court

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judgment. He has not obtained the authorization from the Ninth Circuit to pursue a second or

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successive petition. We recommend that the court dismiss the petition for lack of jurisdiction.

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Second or Successive Petition
A federal court will not consider a second or successive habeas corpus petition that raises

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a claim unless the petitioner shows that (1) the claim relies on a new rule of constitutional law,

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made retroactive by the Supreme Court, that was previously unavailable or (2) the factual

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predicate for the claim could not have been discovered previously through the exercise of due

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diligence. See 28 U.S.C. § 2244(b)(2). A district court may not decide whether a petition meets

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these requirements; the petitioner must obtain the authorization from the appropriate court of

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appeals before filing the petition. See 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S.

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147, 157 (2007). The authorization from the appropriate court of appeals is a jurisdictional

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requirement. See Burton, 549 U.S. at 157.
The definition of the phrase “second or successive” does not appear under the

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Antiterrorism and Effective Death Penalty Act of 1996, so courts look to case law to determine its

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meaning. See Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018). The phrase does not refer to

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all federal habeas petitions filed after the first petition. See Magwood v. Patterson, 561 U.S. 320,

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332 (2010). Instead, a petition is second or successive if (1) the facts underlying the claim

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occurred by the time of the initial petition; and (2) the petition challenges the same state court

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judgment as the initial petition. Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018) (citing

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Magwood, 561 U.S. at 333 and Panetti v. Quarterman, 551 U.S. 930, 945 (2007)). A petition is

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second or successive only if it raises claims that were or could have been adjudicated on the

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merits. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).

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Here, the petition is successive. Petitioner filed another Section 2254 petition in 2009.

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See Oden v. Haws, No. 1:09-cv-1458, 2010 WL 2556853 (E.D. Cal. June 21, 2010). The facts

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underlying the petition in this case—petitioner’s sentencing in 1986—occurred before the 2009

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petition. The instant petition challenges the same 1986 state judgment that petitioner challenged

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in 2009. Compare id. at *2, with ECF No. 1 at 6. The 2009 petition was dismissed as untimely,

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see Oden, 2010 WL 2556853, at *2, and that dismissal, which foreclosed the possibility of future

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litigation, is a decision on the merits. See McNabb, 576 F.3d at 1029 (“We therefore hold that

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dismissal of a section 2254 habeas petition for failure to comply with the statute of limitations
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renders subsequent petitions second or successive for purposes of the AEDPA . . . .”).

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Petitioner has not obtained authorization from the Ninth Circuit to file a successive

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petition, so we lack jurisdiction over this case. We recommend that the court dismiss the case for

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lack of jurisdiction. We need not address two other obvious defects in the petition:

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(1) petitioner’s claim that the state court lacked the statutory authority to sentence him for second-

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degree murder; and (2) the untimeliness of the petition, which challenges a sentence from 1986.

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II.

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

court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253;

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Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases

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requires a district court to issue or deny a certificate of appealability when entering a final order

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adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d

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1268, 1270 (9th Cir. 1997). A certificate of appealability will not issue unless a petitioner makes

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“a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This

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standard requires the petitioner to show that “jurists of reason could disagree with the district

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court’s resolution of his constitutional claims or that jurists could conclude the issues presented

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are adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at 327; see Slack

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v. McDaniel, 529 U.S. 473, 484 (2000). The petitioner must show “something more than the

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absence of frivolity or the existence of mere good faith.” Miller-El, 537 U.S. at 338.

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Reasonable jurists would not disagree that the petition here is an unauthorized successive

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petition and that it should not proceed further. Thus, the court should decline to issue a certificate

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of appealability.

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III.

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Findings and recommendations
We recommend that the petition be dismissed as an unauthorized successive petition and

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that the court decline to issue a certificate of appealability. We submit the findings and

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recommendations to the U.S. District Court Judge who will be assigned to the case under 28

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U.S.C. § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District

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Court, Eastern District of California. Within 14 days of the service of the findings and
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recommendations, petitioner may file written objections to the findings and recommendations

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with the court and serve a copy on all parties. That document must be captioned “Objections to

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Magistrate Judge’s Findings and Recommendations.” The assigned District Judge will then

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review the findings and recommendations under 28 U.S.C. § 636(b)(1)(C). Petitioner’s failure to

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file objections within the specified time may result in the waiver of rights on appeal. See

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

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IV.

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Order
The clerk of court is directed to assign this case to a district judge who will review the

findings and recommendations.

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IT IS SO ORDERED.

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Dated:

May 14, 2019

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UNITED STATES MAGISTRATE JUDGE

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No. 202

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