Wilson v. People of the State of California

Filing 6

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 4/29/13 ORDERING that Petitioners application to proceed in forma pauperis is GRANTED; and the Clerk of the Court shall assign a district judge to this action. It is RECOMMENDED that this action be dismissed for lack ofjurisdiction. Randomly assigned and referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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KELLY WILSON,

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Petitioner,

No. 2:13-cv-0783 CKD P

vs.
PEOPLE OF CALIFORNIA,

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ORDER AND

Respondent.

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FINDINGS & 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).
Petitioner challenges his 1996 conviction and sentence.1 Court records indicate

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that petitioner has filed prior petitions in this court challenging his 1996 conviction and sentence.

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See Wilson v. Grounds, No. 2:12-cv-0305 WBS KJN P (E.D. Cal.), Dkt. No. 17 (summarizing

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In 1996, petitioner was convicted in the Sutter County Superior Court for multiple
sexual offenses, resulting in a sentence of 175 years to life. See Wilson v. People of California,
No. 2:13-cv-0683 CKD P (E.D. Cal.), Dkt. No. 4.
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prior cases). The first of these petitions was filed on September 1, 1999 and was denied on the

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merits on April 26, 2004. Wilson v. Fairman, No. 2:99-cv-1711 JKS (E.D. Cal.), Dkt. No. 34.

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The dismissal was with prejudice. Id.

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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). “Before a second or

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successive application . . . is filed in the district court, the applicant shall move in the appropriate

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court of appeals for an order authorizing the district court to consider the application.” 28 U.S.C.

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§ 2244(3)(A). Without an order from the appellate court, the district court is without jurisdiction

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to consider a second or successive petition. See Burton, 549 U.S. at 152, 157. As petitioner

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offers no evidence that the Ninth Circuit Court of Appeals has authorized this court to consider a

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second or successive petition challenging his 1996 conviction, this action should be dismissed

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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 the Court shall assign a district judge to this action.

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

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jurisdiction.
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, 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." In his objections petitioner

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may address whether a certificate of appealability should issue in the event he files an appeal of

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the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district
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court must issue or deny a certificate of appealability when it enters a final order adverse to the

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applicant). Petitioner is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: April 29, 2013

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_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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wils0783.succpet

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