Roxas v. Lizarraga

Filing 24

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 7/20/16 RECOMMENDING that respondent's motion to dismiss (Doc. 12 ) be granted. Referred to Judge Troy L. Nunley; Objections to F&R due within 14 days.(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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ERNIE ROXAS,

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No. 2:15-CV-2201-CMK-P

Petitioner,

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vs.

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J. LIZARRAGA,

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FINDINGS AND RECOMMENDATIONS

Respondent.

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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 motion to

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dismiss (Doc. 12).

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Respondent argues that the instant petitioner is a second of successive petition

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which must be dismissed. Under 28 U.S.C. § 2244(b)(1), “[a] claim presented in a second or

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

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

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

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

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law, 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 can be filed in the district court, however, the petitioner

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

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

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second or successive petition and must dismiss it. See Cooper v. Calderon, 274 F.3d 1270 (9th

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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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The court agrees with respondent that the instant petition is a second or successive

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petition. Petitioner filed a prior federal habeas petition on October 1, 2010, Roxas v. Montal,

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2:10-CV-2672-WBS-TJB-P, challenging a September 7, 2007, conviction in San Joaquin

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County. Judgement in the 2010 federal petition was entered on August 15, 2012, and the Ninth

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Circuit Court of Appeals declined to issue a certificate of appealability. A review of both
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dockets reflects that the claims raised in the current federal petition were all raised in the 2010

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federal petition. As such, the current petition must be dismissed under § 2244(b)(1). To the

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extent the current petition can be seen as presenting claims which were not decided on the merits

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in the 2010 action, petitioner has not obtained leave from the Ninth Circuit to present such

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claims in a second or successive petition. Thus, the current petition must also be dismissed

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under § 2244(b)(3).

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Because the court lacks jurisdiction to consider the current second or successive

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petition, it is not necessary to address respondent’s alternative argument that the instant petition

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is untimely.

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Based on the foregoing, the undersigned recommends that respondent’s motion to
dismiss (Doc. 12) 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: July 20, 2016
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CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE

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