Magana-Torres v. Harrington
Filing
4
ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 1/28/2014 ORDERING the Clerk to randomly assign a US District Judge to this action; and RECOMMENDING that this action be dismissed for lack of jurisdiction. Assigned and Referred to Judge Morrison C. England, Jr.; Objections due within 14 days. (Yin, K)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
JOSE HUMBERTO MAGANA-TORRES,
12
13
14
15
No. 2:14-cv-76-EFB P
Petitioner,
v.
ORDER AND FINDINGS AND
RECOMMENDATIONS
KELLY HARRINGTON,
Respondent.
16
17
Petitioner, a state prisoner without counsel, has filed a petition for a writ of habeas corpus
18
pursuant to 28 U.S.C. § 2254. The court has reviewed the petition as required by Rule 4 of the
19
Rules Governing Section 2254 Proceedings, and finds that the petition is second or successive
20
and must therefore be dismissed.
21
A petition is second or successive if it makes “claims contesting the same custody
22
imposed by the same judgment of a state court” that the petitioner previously challenged, and on
23
which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007);
24
see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive
25
petition in a district court, a petitioner must obtain from the appellate court “an order authorizing
26
the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Without an order from
27
the appellate court, the district court is without jurisdiction to consider a second or successive
28
petition. See Burton, 549 U.S. 147.
1
1
Petitioner is currently serving an aggregate indeterminate sentence of 62 years to life in
2
prison after a Placer County jury convicted him of several crimes related to, among other acts, the
3
June 4, 2004 home invasion and attempted murder of an elderly couple. See ECF No. 1
4
(Petition).1 In the present action, petitioner challenges the resulting judgment of conviction. See
5
id.
6
Court records reveal that petitioner previously challenged this judgment of conviction in
7
an earlier action. In Magana-Torres v Harrington, No. 2:10-cv-2669, the court considered
8
petitioner’s challenge to his judgment of conviction arising from the June 4, 2004 home invasion
9
and attempted murder of an elderly couple, and denied the petition on its merits. See Magana-
10
Torres, ECF No. 21 (recommending that petition for writ of habeas corpus be denied); ECF No.
11
31 (order adopting recommendation and denying habeas relief).
12
Since petitioner challenges the same judgment now that he previously challenged and
13
which was adjudicated on the merits, the petition now pending is second or successive. Petitioner
14
offers no evidence that the appellate court has authorized this court to consider a second or
15
successive petition. Since petitioner has not demonstrated that the appellate court has authorized
16
this court to consider a second or successive petition, this action must be dismissed for lack of
17
jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001)
18
(per curiam).
19
20
21
22
Accordingly, it is hereby ORDERED that the Clerk of the Court randomly assign a United
States District Judge to this action.
Further, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of
jurisdiction.
23
These findings and recommendations are submitted to the United States District Judge
24
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
25
after being served with these findings and recommendations, any party may file written
26
27
28
1
Petitioner indicates that the California Court of Appeal, Third Appellate District,
affirmed his conviction on March 27, 2009. ECF No. 1 at 3. That decision can be found at
People v. Gomez-Perez, 2009 Cal. App. Unpub. LEXIS 2446 (Cal. App. 3d Dist. Mar. 27, 2009).
2
1
objections with the court and serve a copy on all parties. Such a document should be captioned
2
“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections
3
shall be served and filed within fourteen days after service of the objections. Failure to file
4
objections within the specified time may waive the right to appeal the District Court’s order.
5
Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
6
1991). In his objections petitioner may address whether a certificate of appealability should issue
7
in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing
8
Section 2254 Cases in the United States District Courts (the district court must issue or deny a
9
certificate of appealability when it enters a final order adverse to the applicant).
10
DATED: January 28, 2014.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?