Chism v. Davis

Filing 4

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/31/2013 ORDERING that this action is DISMISSED for lack of jurisdiction and the court DECLINES to issue a certificate of appealability. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM H. CHISM, III,

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Petitioner,

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No. 2:13-cv-2078-EFB P

v.

ORDER

RON DAVIS, Warden,

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Respondent.

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Petitioner, a state prisoner without counsel, has filed a petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254.1 The court has reviewed the petition as required by Rule 4 of the

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Rules Governing Section 2254 Proceedings, and finds that the petition is second or successive

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and must therefore be dismissed.

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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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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1)
and is before the undersigned pursuant to petitioner’s consent. See 28 U.S.C. § 636; see also E.D.
Cal. Local Rules, Appx. A, at (k)(4).

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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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In the present action, petitioner challenges a judgment of conviction entered in the

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Sacramento County Superior Court on June 22, 2001, for rape, lewd acts on a child under

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fourteen, oral copulation, forced oral copulation, and having sustained a prior strike. See Petition

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(ECF No. 1) at 1 (referencing criminal case number 00F05616). The court has examined its

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records, and finds that petitioner challenged the same conviction in an earlier action. In Chism v.

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Clark, No. 2:08-cv-2260-WBS-EFB, the court considered petitioner’s challenge to his 2001

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Sacramento County Superior Court conviction of 11 felony sex offenses, one misdemeanor sex

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offense, and felony failure to register as a sex offender. See Chism, ECF. No. 24 (magistrate

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judge’s February 3, 2010 finding and recommendations to dismiss petition as untimely); ECF No.

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petitioner’s application for a writ of habeas corpus as untimely); see also id., ECF No. 1 (petition,

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referencing criminal case number 00F05616).

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The earlier filed petition was dismissed as untimely, which constitutes a decision on the

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merits. See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (“[D]ismissal of a habeas

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petition as untimely constitutes a disposition on the merits and [ ] a further petition challenging

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the same conviction [is] ‘second or successive’ for purposes of 28 U.S.C. § 2244(b).”); Murray v.

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Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (dismissal of habeas petition as time barred “constitutes

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an adjudication on the merits that renders future petitions under § 2254 challenging the same

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conviction ‘second or successive’ petitions under § 2244(b).”).

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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 ORDERED that this action is dismissed for lack of jurisdiction

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and the court declines to issue a certificate of appealability.

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Dated: October 31, 2013.

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