de Puente Hudson v. Biter

Filing 6

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/24/2013 ORDERING that petitioner's 2 application to proceed IFP is GRANTED; and the Clerk shall assign a district judge to this action; and RECOMMENDING that this 1 petition be dismissed for lack of jurisdiction. Assigned and Referred to Judge Morrison C. England, Jr.; 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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MARCO de PUENTE HUDSON,

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Petitioner,
vs.
MARTIN D. BITER,

ORDER &

Respondent.

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No. 2:12-cv-3087 CKD P

FINDINGS AND RECOMMENDATIONS
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Petitioner is a state prisoner proceeding pro se with an application for 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. Examination of the in forma pauperis application reveals that petitioner is unable to

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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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Petitioner challenges his 2001 conviction following a guilty plea to destruction of

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state prison property with aggravating factors, for which he was sentenced to a state prison term

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of six years. (Dkt. No. 1 at 1.) The court has examined its records, and finds that petitioner

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challenged this same conviction in an earlier action, Hudson v. Yates, No. 2:08-cv-1302 GGH P

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(E. D. Cal.), dismissed on February 27, 2009 as untimely under the Antiterrorism and Effective

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Death Penalty Act of 1996 (AEDPA).
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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, 153

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(2007); see also Slack v. McDaniel, 529 U.S. 473, 485-486 (2000). A second or subsequent

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habeas petition is not considered “successive” if the initial habeas petition was dismissed for a

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technical or procedural reason. See Slack v. McDaniel, 529 U.S. 473, 485–487 (2000) (second

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habeas petition not “successive” if initial habeas petition dismissed as “mixed” petition

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containing exhausted and unexhausted claims where no claim in initial petition adjudicated on

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the merits). However, in McNabb v. Yates, 576 F.3d 1028,1030 (9th Cir. 2009), the Ninth

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Circuit held that dismissal of a habeas petition for failure to comply with the AEDPA statute of

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limitations renders subsequent petitions challenging the same conviction successive. Because

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petitioner’s prior federal habeas petition was dismissed for untimeliness, the instant petition is

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successive.

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Before filing a second or successive petition in district court, a petitioner must

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obtain from the appellate court “an order authorizing the district court to consider the

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application.” 28 U.S.C. § 2244(b)(3)(A). Without an order from the appellate court, the district

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court is without jurisdiction to consider a second or successive petition. See Burton, 549 U.S. at

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152, 157. As petitioner offers no evidence that the appellate court has authorized this court to

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consider a second or successive petition challenging his 2001 conviction, this action should be

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dismissed for lack of jurisdiction.

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Accordingly, IT IS HEREBY ORDERED THAT:

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1. Petitioner’s application to proceed in forma pauperis is granted; and

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2. The Clerk of Court shall assign a district judge to this action.

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IT IS HEREBY RECOMMENDED that this petition be dismissed for lack of

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jurisdiction.

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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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days after being served with these findings and recommendations, petitioner may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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If petitioner files objections, he shall also address if a certificate of appealability
should issue and, if so, as to which issues. A certificate of appealability may issue under 28

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U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). The certificate of appealability must “indicate

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which specific issue or issues satisfy” the requirement. 28 U.S.C. § 2253(c)(3).

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Dated: January 24, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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huds3087.successive

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