Nigro v. Grounds

Filing 9

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 3/18/2013 GRANTING petitioner's 5 application to proceed IFP; and RECOMMENDING that petitioner's 1 application for writ of habeas corpus be dismisse d without prejudice to its refiling with a copy of an order from the Ninth Circuit authorizing petitioner to file a second or successive petition; and this action be closed. Referred to Judge Lawrence K. Karlton; Objections due within 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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PASQUALE NIGRO,

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Petitioner,

No. 2:12-cv-2954 LKK DAD P

vs.
R. GROUNDS,

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ORDER AND

Respondent.

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FINDINGS AND RECOMMENDATIONS
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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of

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habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma

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pauperis.

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Examination of the in forma pauperis application reveals that petitioner is unable

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to afford the costs of suit. Accordingly, the application to proceed in forma pauperis will be

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granted. See 28 U.S.C. § 1915(a).

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BACKGROUND
In 2001, petitioner pled no contest in the Solano County Superior Court to twenty-

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one counts of engaging in lewd or lascivious acts with a minor in violation of California Penal

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Code § 288. Pursuant to that plea, on February 19, 2002, that court sentenced petitioner to

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ninety-six years in state prison. The California Court of Appeal for the First Appellate District
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affirmed the judgment of conviction, and the California Supreme Court denied review.

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Subsequently, the California Supreme Court denied petitioner habeas corpus relief. (Pet. at 2-4.)

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On or about April 5, 2005, petitioner filed a federal petition for writ of habeas

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corpus in the United States District Court for the Northern District of California challenging his

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Solano County Superior Court judgment of conviction and sentence. That court transferred the

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petition to this court, which had proper venue. See Case No. 2:05-cv-0712 GEB CHS P (E.D.

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Cal.).1 On December 19, 2008, then-Magistrate Judge Charlene Sorrentino issued findings and

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recommendations, recommending that the petition for writ of habeas corpus be denied. On

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January 21, 2009, District Judge Garland Burrell, Jr., adopted those findings and

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recommendations in full, denied the petition, and closed the case. On October 12, 2010, the

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United States Court of Appeals for the Ninth Circuit affirmed that judgment.

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On December 6, 2012, petitioner commenced this action by filing the pending
petition in this court.

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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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(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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/////

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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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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 a

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petition for writ of habeas corpus in this court attacking the same state court conviction and

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sentence that he now seeks to challenge in this federal habeas proceeding. See Case No. 2:05-cv-

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0712 GEB CHS P (E.D. Cal.) In that previously-filed habeas action, this court denied

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petitioner’s application for writ of habeas corpus on the merits, and the Ninth Circuit affirmed

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that judgment.

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Petitioner has not obtained an order from the Ninth Circuit authorizing the

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district court to consider a second or successive petition as required to proceed with this habeas

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action, so this court lacks jurisdiction to entertain the now pending petition. See Burton v.

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Stewart, 549 U.S. 147, 152 (2007). Accordingly, the instant petition should be dismissed

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without prejudice to its refiling with a copy of an order from the Ninth Circuit Court of Appeals

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authorizing petitioner to file a second or successive federal habeas petition.

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CONCLUSION
IT IS HEREBY ORDERED that petitioner’s application to proceed in forma
pauperis (Doc. No. 5) is granted.

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IT IS HEREBY RECOMMENDED that:

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1. Petitioner’s application for a writ of habeas corpus be dismissed without

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prejudice to its refiling with a copy of an order from the Ninth Circuit Court of Appeals

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authorizing petitioner to file a second or successive petition; and

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2. This action be closed.

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These findings and recommendations are 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)(l). Within fourteen

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after being served with these findings and recommendations, petitioner may file written
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objections with the court. The document should be captioned “Objections to Magistrate Judge's

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Findings and Recommendations.” Petitioner is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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In any objections he elects to file, petitioner may address whether a certificate of

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appealability should issue in the event he files an appeal of the judgment in this case. See Rule

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11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a

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certificate of appealability when it enters a final order adverse to the applicant).

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DATED: March 18, 2013.

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DAD:9
nigr2954.156

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