Williams v. California State Prison, Los Angeles County

Filing 16

ORDER ; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 5/2/16 ORDERING that Petitioners application to proceed in forma pauperis (ECF No. 12 ) is GRANTED; The Clerk of the Court is directed to assign a district judge to this case; and it is RECOMMENDED that this action be dismissed without prejudice. 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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ANTONIO R. WILLIAMS,

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No. 2:16-cv-0686 KJN P

Petitioner,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

CALIFORNIA STATE PRISON LOS
ANGELES COUNTY,
Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, challenging his 2009 conviction. On April 25, 2016,

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petitioner filed a request to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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Examination of the in forma pauperis affidavit reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the request for leave to proceed in forma pauperis is granted. See

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28 U.S.C. § 1915(a).

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The court’s records reveal that petitioner previously filed an application for a writ of

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habeas corpus attacking the 2009 conviction and sentence challenged in this case. Williams v.

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Warden, California State Prison, Los Angeles County, Case No. 2:12-cv-1588 KJM CKD P. The

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previous application was filed on August 31, 2011. On September 29, 2014, respondent’s motion

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to dismiss the petition for untimeliness was granted. Id. Petitioner concedes, and the case docket

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confirms, that his appeal from that dismissal is pending in the Ninth Circuit Court of Appeals

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(Case No. 15-17389). (ECF No. 1 at 1.) In addition, petitioner raises new claims in the instant

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petition that were not included in the prior petition.

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Generally speaking, a petition is second or successive if it raises claims that were or could

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have been adjudicated on the merits in a previous petition. Cooper v. Calderon, 274 F.3d 1270,

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1273 (9th Cir. 2001). Moreover, although a dismissal based upon the statute of limitations does

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not include an examination of the merits of the underlying claims presented in the petition, such a

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dismissal is considered an adjudication of the merits for purposes of determining whether a

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subsequent petition is successive under 28 U.S.C. § 2244. McNabb v. Yates, 576 F.3d 1028,

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1030 (9th Cir. 2009). Moreover, a petition need not be repetitive to be “second or successive,”

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within the meaning of 28 U.S.C. § 2244(b). See, e.g., Thompson v. Calderon, 151 F.3d 918, 920-

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Before petitioner can proceed with the instant application, he must move in the United

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States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider

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the application. 28 U.S.C. § 2244(b)(3)(A). There is no indication that petitioner has obtained

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such approval prior to the filing of the current petition. Thus, this court lacks jurisdiction to

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address the merits of the petition. See 28 U.S.C. § 2244(b) (3); Cooper, 274 F.3d at 1274 (stating

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that failure to request the requisite authorization to file a second or successive § 2254 petition

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from the circuit court deprives the district court of jurisdiction). Therefore, petitioner’s

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application must be dismissed without prejudice to its re-filing upon obtaining authorization from

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the United States Court of Appeals for the Ninth Circuit.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s application to proceed in forma pauperis (ECF No. 12) is granted;

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2. The Clerk of the Court is directed to assign a district judge to this case; and

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IT IS RECOMMENDED that this action be dismissed without prejudice.

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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 and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files objections,

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he shall also address whether a certificate of appealability should issue and, if so, why and as to

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which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the

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applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

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§ 2253(c)(3). Petitioner is advised that failure to file objections within the specified time may

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waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991).

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Dated: May 2, 2016

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will0686.succ

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