Melendez v. Davis

Filing 5

ORDER signed by Magistrate Judge Edmund F. Brennan on 7/2/15 ORDERING that this action is dismissed for lack of jurisdiction and no certificate of appealability shall issue. CASE CLOSED. (Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PHILIP R. MELENDEZ,

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No. 2:15-cv-1209-EFB P

Petitioner,
v.

ORDER

RONALD DAVIS,

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Respondent.

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Petitioner, a state prisoner proceeding without counsel with a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254.1 The court has reviewed the petition as required by Rule 4

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of the Rules Governing Section 2254 Proceedings, and finds that the petition is second or

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successive and must therefore be dismissed.

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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 (2007);

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see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive

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petition in a district court, a petitioner must obtain from the appellate court “an order authorizing

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See 28 U.S.C. § 636;
see also E.D. Cal. Local Rules, Appx. A, at (k)(4).

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the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Without an order from

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the appellate court, the district court is without jurisdiction to consider a second or successive

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petition. See Burton, 549 U.S. 147.

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In the present action, petitioner challenges a judgment of conviction entered in the

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Sacramento County Superior Court on January 4, 2000, for second degree murder, personal use of

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a firearm, and assault with a deadly weapon, which resulted in a state prison sentence of 41 years

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to life. ECF No. 1 at 1. The court has examined its records, and finds that petitioner challenged

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the same judgment of conviction in an earlier action. Specifically, in Melendez v. Scribner, No.

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2:03-cv-1593-GEB-KJM (E.D. Cal.), the court considered petitioner’s challenge to the same

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judgment of conviction. See Melendez, ECF No. 22 (magistrate judge’s August 30, 2006 findings

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and recommendations to deny petition on the merits); ECF No. 26 (district judge’s December 11,

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2006 order adopting findings and recommendations and denying petitioner’s application for a

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writ of habeas corpus). Since petitioner challenges the same judgment now that he previously

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challenged and which was adjudicated on the merits, the petition now pending is second or

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successive.

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Petitioner offers no evidence that the appellate court has authorized this court to consider

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a second or successive petition. Since petitioner has not demonstrated that the appellate court has

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authorized this court to consider a second or successive petition, this action must be dismissed for

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lack of jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th

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Cir. 2001) (per curiam).

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Accordingly, it is hereby ORDERED that this action is dismissed for lack of jurisdiction

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and no certificate of appealability shall issue.

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DATED: July 2, 2015.

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