Thomas v. Fox

Filing 8

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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIMMY RENAY THOMAS, 12 Petitioner, 13 14 15 v. No. 2:16-cv-1690-JAM-EFB P FINDINGS AND RECOMMENDATIONS R. ROBERT FOX, Respondent. 16 17 Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 18 28 U.S.C. § 2254. The court has reviewed the petition as required by Rule 4 of the Rules 19 Governing Section 2254 Proceedings, and finds that the petition is second or successive and must 20 therefore be dismissed. 21 A petition is second or successive if it makes “claims contesting the same custody 22 imposed by the same judgment of a state court” that the petitioner previously challenged, and on 23 which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); 24 see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive 25 petition in a district court, a petitioner must obtain from the appellate court “an order authorizing 26 the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Without an order from 27 the appellate court, the district court is without jurisdiction to consider a second or successive 28 petition. See Burton, 549 U.S. 147. 1 In the present action, petitioner challenges his 2000 convictions for first degree burglary, 2 second degree burglary, and unlawful taking of a vehicle entered in the Sacramento County 3 Superior Court.1 ECF No. 1 at 1.2 The court has examined its records, and finds that petitioner 4 challenged the same judgment of conviction in an earlier action. Specifically, in Thomas v. 5 Lamarque, No. 2:02-cv-1153-FCD-GGH (E.D. Cal.), the court considered petitioner’s challenge 6 to the same judgment of conviction. See Thomas, ECF No. 18 (magistrate judge’s March 10, 7 2004 findings and recommendations to deny petitioner’s application for a writ of habeas corpus 8 on the merits); ECF No. 20 (district judge’s April 30, 2004 order adopting findings and 9 recommendations and denying petitioner’s application for a writ of habeas corpus). Since 10 petitioner challenges the same judgment now that he previously challenged and which was 11 adjudicated on the merits, the petition now pending is second or successive. 12 Petitioner offers no evidence that the appellate court has authorized this court to consider 13 a second or successive petition. Since petitioner has not demonstrated that the appellate court has 14 authorized this court to consider a second or successive petition, this action must be dismissed for 15 lack of jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 16 Cir. 2001) (per curiam). 17 18 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of jurisdiction. 19 These findings and recommendations are submitted to the United States District Judge 20 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 21 after being served with these findings and recommendations, any party may file written 22 objections with the court and serve a copy on all parties. Such a document should be captioned 23 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 24 shall be served and filed within fourteen days after service of the objections. Failure to file 25 26 1 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. 27 2 28 For ease of reference, all references to page numbers in the petition are to those assigned via the court’s electronic filing system. 2 1 objections within the specified time may waive the right to appeal the District Court’s order. 2 Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 3 1991). In his objections petitioner may address whether a certificate of appealability should issue 4 in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 5 Section 2254 Cases in the United States District Courts (the district court must issue or deny a 6 certificate of appealability when it enters a final order adverse to the applicant). 7 DATED: March 23, 2017. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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