Clark v. Holland, Warden
Filing
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ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/24/15 ORDERING that Petitioners request to proceed in forma pauperis (ECF No. 2 ) is granted; and the Clerk of Court is directed to assign a district judge to this action. It is RECOMMENDED that the petition be dismissed for lack of jurisdiction. Randomly assigned and referred to Judge Garland E. Burrell, Jr.; Objections to F&R due within 14 days.(Dillon, M)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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SEAN DEMETRIOUS CLARK,
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No. 2:15-cv-2406 CKD P
Petitioner,
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v.
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K. HOLLAND,
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ORDER AND
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. This proceeding was referred to this court by Local Rule
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302 pursuant to 28 U.S.C. § 636(b)(1). Petitioner has submitted a declaration that makes the
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showing required by 28 U.S.C. § 1915(a). Accordingly, petitioner may proceed with this action
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in forma pauperis.
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Petitioner challenges his 1998 conviction in the Butte County Superior Court for second
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degree robbery, for which he was sentenced to a state prison term of 25 years to life. (ECF No.
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1.) The court has examined its records and finds that petitioner challenged this same conviction
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in an earlier action, Clark v. Knipp, No. 2:11-cv-3334 (E.D. Cal.), which was dismissed for
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untimeliness on June 11, 2013.
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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 successive petition in district court, a petitioner must obtain from the
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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 jurisdiction
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to consider a second or successive petition. See Burton, 549 U.S. at 152, 157. As petitioner
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offers no evidence that the appellate court has authorized this court to consider a successive
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petition challenging his 1998 conviction, this action should be dismissed for lack of jurisdiction.
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Accordingly, IT IS HEREBY ORDERED that:
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1. Petitioner’s request to proceed in forma pauperis (ECF No. 2) is granted; 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 the petition be dismissed for lack of jurisdiction.
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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.” In his objections petitioner may address whether a
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certificate of appealability should issue in the event he files an appeal of the judgment in this
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case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or
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deny a certificate of appealability when it enters a final order adverse to the applicant).
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Petitioner is advised that failure to file objections within the specified time may waive the right to
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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: November 24, 2015
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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