Bouie v. Trimble
Filing
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ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 5/31/2011 ORDERING that ptnr's 2 request to proceed IFP is GRANTED and the clerk to randomly assign a US District Judge to this case; and RECOMMENDING that this action be dismissed for lack of jurisdiction. Assigned and Referred to Judge Frank C. Damrell, Jr.; Objections due w/in 14 days. (Yin, K)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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DARYL BOUIE,
Petitioner,
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vs.
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No. CIV S-11-1417 EFB P
R.H. TRIMBLE,
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ORDER AND
FINDINGS AND RECOMMENDATIONS
Respondent.
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Petitioner, a state prisoner without counsel, has filed a petition for a writ of habeas
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corpus. See 28 U.S.C. § 2254. Petitioner seeks leave to proceed in forma pauperis. See 28
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U.S.C. § 1915(a). Examination of the in forma pauperis affidavit reveals that petitioner is
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unable to afford the costs of suit. However, the court has reviewed the petition as required by
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Rule 4 of the Rules Governing Section 2254 Proceedings, and finds that the petition is second or
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successive and must therefore be dismissed.
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A petition is second or successive if it makes “claims contesting the same custody
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imposed by the same judgment of a state court” that the petitioner previously challenged, and on
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which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007);
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see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive
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petition in a district court, a petitioner must obtain from the appellate court “an order authorizing
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the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Without an order
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from the appellate court, the district court is without jurisdiction to consider a second or
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successive petition. See Burton, 549 U.S. 147.
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In the present action, petitioner challenges a judgment of conviction entered in the Solano
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County Superior Court on or around April 6, 2001, for first degree robbery and first degree
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burglary along with two sentencing enhancements, and for which petitioner was sentenced to a
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state prison term of 35 years to life. Pet. at 1; see also id. at Ex. A-22 (abstract of judgment
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dated May 3, 2001). The court has examined its records, and finds that petitioner challenged the
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same conviction in an earlier action, which was assigned case number Civ. S-07-1267-JAM-
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DAD. See Bouie v. Sisto, No. Civ. S-07-1267-JAM-DAD, Dckt. No. 1 (June 27, 2007 petition).
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The court dismissed the earlier filed petition as untimely, which constitutes a decision on the
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merits. See Bouie v. Sisto, No. Civ. S-07-1267-JAM-DAD, Dckt. No. 18 (magistrate judge’s
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April 16, 2008 finding and recommendations recommending that the petition be dismissed with
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prejudice because it was filed beyond the one year statute of limitations); Dckt. No. 25 (district
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judge’s October 2, 2008 order adopting findings and recommendations). See also McNabb v.
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Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (“[D]ismissal of a habeas petition as untimely
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constitutes a disposition on the merits and [] a further petition challenging the same conviction
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[is] ‘second or successive’ for purposes of 28 U.S.C. § 2244(b).”); Murray v. Greiner, 394 F.3d
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78, 81 (2d Cir. 2005) (dismissal of habeas petition as time barred “constitutes an adjudication on
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the merits that renders future petitions under § 2254 challenging the same conviction ‘second or
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successive’ petitions under § 2244(b).”). Since petitioner challenges the same judgment now
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that he previously challenged and which was adjudicated on the merits, the May 20, 2011
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petition is second or successive. Petitioner offers no evidence that the appellate court has
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authorized this court to consider a second or successive petition. Since petitioner has not
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demonstrated that the appellate court has authorized this court to consider a second or successive
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petition, this action must be dismissed for lack of jurisdiction. See Burton, 549 U.S. 147;
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Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam).
Accordingly, it is hereby ORDERED that petitioner’s request for leave to proceed in
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forma pauperis is granted and the Clerk of the Court randomly assign a United States District
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Judge to this case.
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Further, it is hereby RECOMMENDED that this action be dismissed for lack of
jurisdiction.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Turner v.
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Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In
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his objections petitioner may address whether a certificate of appealability should issue in the
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event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing
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Section 2254 Cases (the district court must issue or deny a certificate of appealability when it
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enters a final order adverse to the applicant).
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Dated: May 31, 2011.
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