Williams v. Swarthout

Filing 5

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 10/30/13 ORDERING that 2 Motion to Proceed IFP is granted; and the Clerk shall assign a district judge to this action; it is RECOMMENDED that 1 Petition be dismissed for lack of jurisdiction; and this case be closed. Referred to Judge Kimberly J. Mueller; 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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KELON M. WILLIAMS,

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No. 2:13-cv-2198 CKD P

Petitioner,
v.

ORDER AND

GARY SWARTHOUT,

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FINDINGS & RECOMMENDATIONS

Respondent.

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Petitioner is a state prisoner proceeding pro se with an application for writ of habeas

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

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

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costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 28

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U.S.C. § 1915(a).

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Petitioner challenges his 2002 conviction in the El Dorado County Superior Court for

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second degree murder and other offenses, for which he was sentenced to a term of 55 years to life

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in prison. (ECF No. 1.) The court has examined its records and finds that petitioner challenged

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this same conviction in an earlier action, Williams v. High Desert State Prison, et al., No. 2:04-

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cv-2284 GEB DAD P (E.D. Cal.), wherein his petition for habeas corpus was denied on the

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merits on December 1, 2008.

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

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from the appellate court “an order authorizing the district court to consider the application.” 28

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

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

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petitioner offers no evidence that the appellate court has authorized this court to consider a second

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or successive petition challenging his 2002 conviction, this action should be dismissed for lack of

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jurisdiction.

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Accordingly, IT IS HEREBY ORDERED THAT

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1. Petitioner’s motion to proceed in forma pauperis (ECF No. 2) 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:

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1. The petition be dismissed for lack of jurisdiction; and

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2. This case be closed.

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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.” Any response to the

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objections shall be served and filed within fourteen days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: October 30, 2013

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2 / will2198.succ

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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