Sosa-Olivares v. Valenzuela

Filing 5

ORDER signed by Magistrate Judge Dale A. Drozd on 12/15/2014 GRANTING petitioner's 2 application to proceed IFP; petitioner's application for a writ of habeas corpus is DISMISSED without prejudice to its refiling with a copy of an order form the Ninth Circuit Court of Appeals authorizing petitioner to file a second or successive petition; the court DECLINES to issue a COA; and this action is closed. 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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GREGORIO SOSA-OLIVARES,

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No. 2:14-cv-2457 DAD P

Petitioner,
v.

ORDER

E. VALENZUELA, Warden,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.
Examination of the in forma pauperis application reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the court will grant petitioner’s application to proceed in forma

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pauperis. See 28 U.S.C. § 1915(a).

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BACKGROUND
In his petition, petitioner challenges a 1997 judgment of conviction entered against him by

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the Sacramento County Superior Court for first-degree murder with use of a firearm. The trial

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court sentenced petitioner to twenty-five years to life plus ten years in state prison. Petitioner

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unsuccessfully appealed from his judgment of conviction. (Pet. at 1-2.)

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On June 22, 1999, petitioner filed a federal petition for writ of habeas corpus in this court

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challenging this same 1997 judgment of conviction and sentence. See Sosa-Olivares v. Hubbard,
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No. 2:99-cv-1214 GEB JFM P.1 In that earlier filed case, United States Magistrate Judge John F.

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Moulds issued findings and recommendations, recommending that petitioner’s application for a

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writ of habeas corpus be denied. On March 12, 2001, United States District Judge Garland E.

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Burrell adopted those findings and recommendations in full and denied petitioner’s application

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for a writ of habeas corpus. The court entered judgment on the same day. On April 24, 2001,

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Judge Burrell denied petitioner’s request for a certificate of appealability. On December 24,

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2001, the Ninth Circuit Court of Appeals also denied petitioner’s request for a certificate of

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appealability.

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ANALYSIS
“A claim presented in a second or successive habeas corpus application under section

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2254 that was not presented in a prior application shall be dismissed. . . .” 28 U.S.C.

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§ 2244(b)(2). This is the case unless,

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(A) the applicant shows that the claim relies on a new rule of
constitutional law, made retroactive to cases on collateral review by
the Supreme Court, that was previously unavailable; or

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(B) (i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and

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(ii) the facts underlying the claim, if proven and viewed in light of
the evidence as a whole, would be sufficient to establish by clear
and convincing evidence that, but for constitutional error, no
reasonable factfinder would have found the applicant guilty of the
underlying offense.

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28 U.S.C. § 2244(b)(2). Before filing a second or successive petition in the district court, “the

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applicant shall move in the appropriate court of appeals for an order authorizing the district court

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to consider the application.” 28 U.S.C. § 2244(b)(3)(A).
As noted above, the court’s own records reveal that petitioner previously filed a petition

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for writ of habeas corpus in this court attacking the same state court conviction and sentence that

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he now seeks to challenge in this federal habeas proceeding. In his previously-filed habeas

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action, this court denied petitioner’s application for writ of habeas corpus on the merits. See

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A court may take judicial notice of court records. See MGIC Indem. Co. v. Weisman, 803 F.2d
500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980).
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Sosa-Olivares v. Hubbard, No. 2:99-cv-1214 GEB JFM P. As such, petitioner was required to

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obtain authorization from the Ninth Circuit before filing his petition in this court. To date,

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petitioner has not obtained an order from the Ninth Circuit authorizing the district court to

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consider a second or successive petition as required to proceed in this habeas action.

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Accordingly, this court lacks jurisdiction to entertain the now pending petition. See Burton v.

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Stewart, 549 U.S. 147, 152 (2007).

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For all the foregoing reasons, the court will dismiss the instant petition without prejudice

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to its refiling with a copy of an order from the Ninth Circuit Court of Appeals authorizing

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petitioner to file a second or successive federal habeas petition.2

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s application to proceed in forma pauperis (Doc. No. 2) is granted;

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2. Petitioner’s application for a writ of habeas corpus is dismissed without prejudice to its

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refiling with a copy of an order from the Ninth Circuit Court of Appeals authorizing petitioner to

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file a second or successive petition;

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3. The court declines to issue a certificate of appealability; and

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4. This action is closed.

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Dated: December 15, 2014

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DAD:9
sosa2457.156

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Petitioner has consented to Magistrate Judge jurisdiction over this action pursuant to 28 U.S.C.
§ 636. (Doc. No. 4)
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