Parra v. Warden

Filing 5

ORDER AND FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 9/10/2014 DENYING all pending motions as moot; and the Clerk shall assign a district judge to this action; RECOMMENDING that the 1 petition be dismissed for lack of jurisdiction; and this case be closed. Assigned and Referred to Judge Kimberly J. Mueller; Objections due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARISTEO SIERRA PARRA,

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Petitioner,

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v.

No. 2:14-cv-2062 CKD P

ORDER AND

WARDEN,

FINDINGS AND 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. Petitioner challenges his 2009 conviction in the Sacramento

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County Superior Court for second degree murder and assault with a deadly weapon (Cal. Penal

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Code § 187(a); 254(A)(1)), for which he was sentenced to a state prison term of 19 years to life.

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(ECF No. 1 at 9.) The court has examined its records and finds that petitioner challenged this

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same conviction in an earlier action, Parra v. McDonald, 2:12-cv-0335 EFB P (E.D. Cal.), which

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was dismissed for untimeliness on December 4, 2012.

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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). A second or subsequent habeas petition is not considered “successive” if the initial

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habeas petition was dismissed for a technical or procedural reason. See Slack v. McDaniel, 529

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U.S. 473, 485–487 (2000). However, in McNabb v. Yates, 576 F.3d 1028,1030 (9th Cir. 2009),

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the Ninth Circuit held that dismissal of a habeas petition for failure to comply with the AEDPA

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statute of limitations renders subsequent petitions challenging the same conviction successive.

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Because petitioner’s prior federal habeas petition was dismissed for untimeliness, the instant

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petition is successive.

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

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the appellate court “an order authorizing the district court to consider the application.” 28 U.S.C.

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§ 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 2009 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. All pending motions are denied as moot; and

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2. The Clerk of Court is directed to 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, petitioner may file written

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objections with the court. Such a document should be captioned “Objections to Magistrate

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Judge’s Findings and Recommendations.” Petitioner is advised that failure to file objections

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within the specified time may waive the right to appeal the District Court’s order. Martinez v.

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Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: September 10, 2014

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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2 / parr2062.succ_sol

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