Williams v. Spearman
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 11/19/13 RECOMMENDING that 11 Motion to Dismiss be granted and that this action be dismissed for lack of jurisdiction as second or successive. Referred to Judge William B. Shubb; Objections to F&R due within 14 days. (Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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BRIAN WILLIAMS,
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No. 2:13-cv-534-WBS-EFB P
Petitioner,
v.
FINDINGS AND RECOMMENDATIONS
M.E. SPEARMAN,
Respondent.
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Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas
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corpus. See 28 U.S.C. § 2254. Respondent moves to dismiss on the grounds that the petition is
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second or successive and is untimely. ECF No. 11. As explained below, the petition is second or
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successive, and this court lacks jurisdiction to consider it. Therefore, respondent’s motion to
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dismiss must be granted.
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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 from
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the appellate court, the district court is without jurisdiction to consider a second or successive
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petition. See Burton, 549 U.S. 147.
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The petition in this case challenges the May 31, 1995 judgment of the Sacramento County
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Superior Court, which sentenced petitioner to an indeterminate state prison term of thirty years to
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life, consecutive to a determinate term of thirteen years. Petitioner was convicted of second
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degree murder by personal use of a firearm. In the same proceeding, petitioner entered a no
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contest plea to the charge of being a convicted felon in possession of a firearm and admitted to
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having previously been convicted of a felony of robbery in the state of Illinois. See ECF No. 1 at
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10-11 (referring to May 11, 1994 information charging petitioner with second degree murder and
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convicted felon in possession of a firearm), Ex. G (Reporter’s Transcript of change of plea
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proceedings in criminal case number 94F04063); ECF No. 15 (“Lodged Docs.”) 1 (Abstract of
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Judgment for criminal case number 94F04063); Lodged Doc. 2 (Aug. 21, 1997 California Court
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of Appeal Order regarding appeal of criminal case number 94F04063, affirming conviction but
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remanding for trial court to determine whether to impose consecutive sentences).
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In 1998, in Williams v. Ayers, 2:98-cv-01816-FCD-EFB (E.D. Cal.), petitioner filed a
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habeas petition challenging the same conviction and sentence. See Williams, ECF No. 72 at 1-5
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(Feb. 10, 2005 F&Rs summarizing petitioner’s conviction and sentence). On February 10, 2005,
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a magistrate judge issued findings and recommendations considering the claims on the merits and
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recommending that the petition be denied. See id. On August 8, 2005, the district judge adopted
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the findings and recommendations in full and denied the petition on the merits. Id., ECF No. 87.
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Judgment was entered and the district judge declined to issue a certificate of appealability. Id.,
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ECF Nos. 88, 139. On March 20, 2012, the United States Court of Appeals for the Ninth Circuit
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also denied petitioner’s request for a certificate of appealability. Id., ECF No. 140.
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Since petitioner challenges the same judgment now that he previously challenged and
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which was adjudicated on the merits, the petition now pending is second or successive. Petitioner
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offers no evidence that the appellate court has authorized this court to consider a second or
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successive petition. Since petitioner has not demonstrated that the appellate court has authorized
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this court to consider a second or successive petition, this action must be dismissed for lack of
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jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001)
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(per curiam).
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Accordingly, it is hereby RECOMMENDED that respondent’s motion to dismiss (ECF
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No. 11) be granted and that this action be dismissed for lack of jurisdiction as second or
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successive.
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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: November 19, 2013.
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