Joseph v. Knipp

Filing 7

ORDER signed by Magistrate Judge Dale A. Drozd on 10/25/2012 ORDERING that petitioner's application for a writ of habeas corpus is DISMISSED as a second or successive habeas corpus application without prejudice to its refiling with a a copy of an order from the Ninth Circuit Court of Appeals authorizing petitioner to file a successive petition; petitioner's 3 request for the appointment of counsel is DENIED; and this action is CLOSED.(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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ALONZO JOSEPH,

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Petitioner,

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vs.

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No. 2:12-cv-02507-DAD P

WILLIAM KNIPP,

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Respondent.

ORDER
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Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, an application to proceed in forma pauperis, and a request

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for the appointment of counsel. Petitioner has consented to Magistrate Judge jurisdiction in this

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action pursuant to 28 U.S.C. § 636(c). See Docs. No. 4 & 6.

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BACKGROUND
On August 9, 1997, a Sacramento County Superior Court jury found petitioner

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guilty of burglary and receiving stolen property. (Doc. No. 1 at 1.) The California Court of

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Appeal for the Third Appellate District affirmed the judgment of conviction on appeal, and the

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California Supreme Court denied review. (Id. at 2.)

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On January 3, 2000, many years before the petition now pending before this court

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was filed, petitioner filed a federal petition for writ of habeas corpus in this court challenging his
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1997 judgment of conviction entered in the Sacramento County Superior Court. See Case No.

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2:00-cv-00004-EJG-GGH P.1 On May 15, 2003, the magistrate judge assigned to that action

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issued findings and recommendations, recommending that the earlier petition for writ of habeas

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corpus be denied. On August 5, 2003, District Judge Edward J. Garcia adopted those findings

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and recommendations in full, denied the petition and closed the case. On November 20, 2003,

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the United States Court of Appeals for the Ninth Circuit denied petitioner a certificate of

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appealability in connection with that earlier federal habeas action.

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On August 26, 2004, petitioner filed a second federal habeas petition challenging

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his 1997 judgment of conviction. See Case No. 2:04-cv-01780-MCE-GGH P. That action was

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transferred to the Ninth Circuit Court of Appeals for consideration as a successive petition.

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On April 23, 2012, petitioner filed yet a third federal habeas petition challenging

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his 1997 Sacramento County Superior Court conviction. See Case No. 2:12-cv-01061-GGH P.

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On May 1, 2012, that action was also transferred to the Ninth Circuit Court of Appeals for

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consideration as a successive petition.

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Finally, on October 5, 2012, petitioner filed the pending habeas petition which
again challenges his 1997 conviction.

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ANALYSIS

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“A claim presented in a second or successive habeas corpus application under

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section 2254 that was not presented in a prior application shall be dismissed . . . .” 28 U.S.C. §

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2244(b)(2). This is the case unless,

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(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review
by the Supreme Court, that was previously unavailable; or

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(B)(i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803
F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

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28 U.S.C. § 2244(b)(2). Before filing a second or successive petition 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.” 28 U.S.C. § 2244(b)(3)(A).

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As noted above, the court’s own records reveal that petitioner previously filed

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three petitions seeking federal habeas relief in this court, all of which attacked the same state

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court conviction and sentence that he now seeks to challenge in this federal habeas proceeding.

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In his first habeas action, this court denied petitioner’s application for writ of habeas corpus on

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the merits. In the case of his second and third federal habeas petitions, those actions were

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transferred to the Ninth Circuit for consideration as a successive petition. Petitioner did not

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obtain authority from the U.S. Court of Appeals to proceed with his successive federal habeas

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petitions as required in order to so proceed. See 28 U.S.C. § 2244(b).

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In connection with this current federal habeas action, petitioner has again not

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obtained an order from the Ninth Circuit authorizing the district court to consider a successive

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petition as required to proceed with this habeas action, so this court lacks jurisdiction to entertain

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the now pending petition. See Burton v. Stewart, 549 U.S. 147, 152 (2007). Accordingly, the

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instant petition will be dismissed without prejudice to its refiling with a copy of an order from

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the Ninth Circuit Court of Appeals authorizing petitioner to file a successive federal habeas

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petition.

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In light of this order, the court will not rule on petitioner’s application to proceed

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in forma pauperis and will deny petitioner’s request for the appointment of counsel.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s application for a writ of habeas corpus is dismissed as a second or

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successive habeas corpus application without prejudice to its refiling with a copy of an order

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from the Ninth Circuit Court of Appeals authorizing petitioner to file a successive petition;

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2. Petitioner’s October 5, 2012 request for the appointment of counsel (Doc. No.
3) is denied; and

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3. This action is closed.
DATED: October 25, 2012.

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DAD:4
josep2507.succ

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