Lowe v. Davis

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 8/2/16 RECOMMENDING that this action be dismissed without prejudice. Referred to Judge John A. Mendez; Objections to F&R due within 21 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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FLOYD LOWE,

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Petitioner,

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No. 2:16-cv-0924 JAM AC P

v.

FINDINGS AND RECOMMENDATIONS

RON DAVIS,

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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 together with a request to proceed in forma pauperis

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pursuant to 28 U.S.C. § 1915. Though petitioner’s request to proceed in forma pauperis is

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incomplete, the court will not assess a filing fee at this time. Instead, the undersigned will

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recommend that the petition be summarily dismissed.
I.

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Petition

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In the instant petition, petitioner challenges his February 22, 2000 conviction for

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possession of a firearm. ECF No. 1 at 1. He was sentenced to an indeterminate term of twenty-

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five years to life. Id. He alleges that his constitutional rights were violated because the

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prosecution withheld evidence favorable to the defense and the conviction constituted double

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jeopardy. Id. at 4.

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The petition indicates (id. at 3), and the court’s records confirm, that petitioner has

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previously filed an application for a writ of habeas corpus attacking the conviction and sentence

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challenged in this case. The previous application was filed by the Clerk of the Court on April 23,

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2002, and was denied on the merits on August 29, 2006. Lowe v. People of California, No. 2:02-

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cv-00882 LKK GGH, ECF Nos. 1, 24, 28. This court takes judicial notice of the record in that

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proceeding. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take

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judicial notice of its own records in other cases.”).

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Under 28 U.S.C. § 2244(b)(3)(A), a second or successive application for habeas relief

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may not be filed in district court without prior authorization by the court of appeals. Felker v.

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Turpin, 518 U.S. 651, 657 (1996). Prior authorization is a jurisdictional requisite. Burton v.

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Stewart, 549 U.S. 147, 152-53 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001)

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(once district court has recognized a petition as second or successive pursuant to § 2244(b), it

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lacks jurisdiction to consider the merits). A petition is successive within the meaning of 28

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U.S.C. § 2244(b) where it “seeks to add a new ground for relief” or “if it attacks the federal

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court’s previous resolution of a claim on the merits.” Gonzalez v. Crosby, 545 U.S. 524, 532

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(2005) (emphasis in original). “[A] ‘claim’ as used in § 2244(b) is an asserted federal basis for

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relief from a state court’s judgment of conviction.” Id. at 530. “A habeas petition is second or

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successive only if it raises claims that were or could have been adjudicated on the merits.”

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McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing Woods v. Carey, 525 F.3d 886,

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888 (9th Cir. 2008)).

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Before petitioner can proceed on his claims, he must move in the United States Court of

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

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application. 28 U.S.C. § 2244(b)(3). Petitioner has not provided any evidence that he has sought

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and received the required authorization. The undersigned will therefore recommend that this

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action be dismissed without prejudice to refiling once petitioner receives authorization to proceed

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from the Ninth Circuit.

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Accordingly, 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 twenty-one 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. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” Petitioner is advised that failure to file objections within the

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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

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F.2d 1153 (9th Cir. 1991).

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DATED: August 2, 2016

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