Jones v. Foulk

Filing 4

ORDER signed by Magistrate Judge Craig M. Kellison on 5/6/15 ORDERING that this action shall be transferred, pursuant to 28 U.S.C. § 1631, to the Ninth Circuit Court of Appeals. All pending motions are denied without prejudice.(Dillon, 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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JEFFREY DUPREE JONES,

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No. 2:14-cv-2928-CMK-P

Petitioner,
vs.

ORDER

F. FOULK,
Respondent.
/
Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary

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dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any

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exhibits annexed to it that the petitioner is not entitled to relief in the district court.” In the

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instant case, it is plain that petitioner is not entitled to federal habeas relief. This is petitioner’s

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second petition for a writ of habeas corpus filed in this court, challenging the same conviction.

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Petitioner acknowledges this, and has informed the court that his current petition filed in this

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court was in fact his request to the Ninth Circuit to file a second or successive petition. He has

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requested this court forward the current petition and application to the Ninth Circuit Court of
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Appeals.
Under 28 U.S.C. § 2244(b)(1), “[a] claim presented in a second or successive

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habeas corpus application . . . that was presented in a prior application shall be dismissed.”

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Under § 2244(b)(2), “[a] claim presented in a second or successive habeas corpus application . . .

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that was not presented in a prior application shall be dismissed . . .” unless one of two

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circumstances exist. Either the newly raised claim must rely on a new rule of constitutional law,

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or the factual predicate of the new claim could not have been discovered earlier through the

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exercise of due diligence and the new claim, if proven, establishes actual innocence. See id.

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Before a second or successive petition potentially permissible under § 2244(b)(2) can be filed,

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the petitioner must first obtain leave of the Court of Appeals. See 28 U.S.C. § 2244(b)(3). In the

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absence of proper authorization from the Court of Appeals, the district court lacks jurisdiction to

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consider a second or successive petition and must dismiss it. See Cooper v. Calderon, 274 F.3d

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1270 (9th Cir. 2001) (per curiam).

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The court agrees that petitioner’s application to file a second or successive

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petition should have been filed in the Ninth Circuit Court of Appeals, not in this court.

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Accordingly, this action shall be transferred, pursuant to 28 U.S.C. § 1631, to the Ninth Circuit

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Court of Appeals. See United States v. Barrett, 178 F.3d 34, 41 n.1 (1st Cir. 1999); Coleman v.

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United States, 106 F.3d 339, 341 (10th Cir. 1997) (per curiam); In re Sims, 111 F.3d 45, 47 (6th

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Cir. 1997); Liriano v. United States, 95 F.3d 119, 122-23 (2d Cir. 1996). All pending motions

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are denied without prejudice.

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IT IS SO ORDERED.
DATED: May 6, 2015
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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