Knanishu v. Spearman
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 08/18/15 recommending that respondent's unopposed motion to dismiss 23 be granted. MOTION to DISMISS 23 referred to Judge Troy L. Nunley. Objections due within 14 days. (Plummer, 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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KENNETH KNANISHU,
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Petitioner,
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vs.
FINDINGS AND RECOMMENDATIONS
SPEARMAN,
Respondent.
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No. 2:14-CV-0579-TLN-CMK-P
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is respondent’s unopposed
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motion to dismiss (Doc. 23).
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Respondent argues, among other things, that this court lacks jurisdiction to
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consider the instant petition because it is a second or successive petition filed without first
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obtaining authorization from the Ninth Circuit Court of Appeals. Under 28 U.S.C. § 2244(b)(1),
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“[a] claim presented in a second or successive habeas corpus application . . . that was presented
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in a prior application shall be dismissed.” Under § 2244(b)(2), “[a] claim presented in a second
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or successive habeas corpus application . . . that was not presented in a prior application shall be
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dismissed. . . .” unless one of two circumstances exist. Either the newly raised claim must rely
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on a new rule of constitutional law, or the factual predicate of the new claim could not have been
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discovered earlier through the exercise of due diligence and the new claim, if proven, establishes
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actual innocence. See id. Before a second or successive petition can be filed in the district
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court, however, the petitioner must first obtain leave of the Court of Appeals. See 28 U.S.C.
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§ 2244(b)(3). In the absence of proper authorization from the Court of Appeals, the district court
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lacks jurisdiction to consider a second or successive petition and must dismiss it. See Cooper v.
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Calderon, 274 F.3d 1270 (9th Cir. 2001) (per curiam).
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A second petition can only be successive of a prior petition which has been
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decided on the merits. Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). A decision on the
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merits occurs if the district court either considers and rejects the claims or determines that the
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claims will not be considered by a federal court. See Howard v. Lewis, 905 F.2d 1318, 1322-23
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(9th Cir. 1990). Where a prior petition has been dismissed without prejudice for failure to
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exhaust state court remedies, the dismissal does not result in an adjudication on the merits
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because the possibility of returning to court following exhaustion exists and a habeas petition
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filed in the district court after the initial petition was dismissed is not second or successive. See
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Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). The dismissal of a petition as untimely,
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however, does constitute a decision on the merits because such a dismissal is a determination that
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the claims will not be considered. See McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir.
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2009). Likewise, the denial of a petition on procedural default grounds is also a determination
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on the merits. See Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005) (citing Howard,
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905 F.2d at 1322-23, and stating that the denial of a petition on procedural default grounds is a
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determination that the claims will not be considered by the federal court).
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A review of petitioner’s filings in this court reflects that petitioner filed a prior
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habeas action, Knanishu v. Hedgpeth, 2:10-CV-2171-CMK, in August 2010. That petition was
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dismissed as untimely on February 28, 2011. Because petitioner has not obtained prior
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authorization from the Ninth Circuit to file the instant petition, the court agrees with respondent
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that it must be dismissed for lack of jurisdiction.
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Based on the foregoing, the undersigned recommends that respondent’s
unopposed motion to dismiss (Doc. 23) be granted.
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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 14 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. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: August 18, 2015
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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