Thomas v. Fox
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 3/23/2017 RECOMMENDING this action be dismissed for lack of jurisdiction. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)
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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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JIMMY RENAY THOMAS,
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Petitioner,
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v.
No. 2:16-cv-1690-JAM-EFB P
FINDINGS AND RECOMMENDATIONS
R. ROBERT FOX,
Respondent.
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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to
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28 U.S.C. § 2254. The court has reviewed the petition as required by Rule 4 of the Rules
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Governing Section 2254 Proceedings, and finds that the petition is second or successive and must
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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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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 his 2000 convictions for first degree burglary,
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second degree burglary, and unlawful taking of a vehicle entered in the Sacramento County
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Superior Court.1 ECF No. 1 at 1.2 The court has examined its records, and finds that petitioner
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challenged the same judgment of conviction in an earlier action. Specifically, in Thomas v.
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Lamarque, No. 2:02-cv-1153-FCD-GGH (E.D. Cal.), the court considered petitioner’s challenge
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to the same judgment of conviction. See Thomas, ECF No. 18 (magistrate judge’s March 10,
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2004 findings and recommendations to deny petitioner’s application for a writ of habeas corpus
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on the merits); ECF No. 20 (district judge’s April 30, 2004 order adopting findings and
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recommendations and denying petitioner’s application for a writ of habeas corpus). Since
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petitioner challenges the same judgment now that he previously challenged and which was
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adjudicated on the merits, the petition now pending is second or 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 RECOMMENDED that this action 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, any party 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.” Any reply to the objections
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shall be served and filed within fourteen days after service of the objections. Failure to file
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To the extent petitioner wishes to also challenge a later denial of resentencing, he must
do so in a separate petition. See Rule 2(e) of the Rules Governing Section 2254 Cases.
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For ease of reference, all references to page numbers in the petition are to those assigned
via the court’s electronic filing system.
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objections within the specified time may waive the right to appeal the District Court’s order.
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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.
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1991). In his objections petitioner may address whether a certificate of appealability should issue
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in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing
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Section 2254 Cases in the United States District Courts (the district court must issue or deny a
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certificate of appealability when it enters a final order adverse to the applicant).
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DATED: March 23, 2017.
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