Griffin v. Sacramento County Superior Court
Filing
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ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/3/16 ORDERING that 4 Motion to Proceed IFP is GRANTED; It is RECOMMENDED that the petition be dismissed for lack of jurisdiction. Referred to Judge John A. Mendez; 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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DAVID GRIFFIN,
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Petitioner,
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No. 2:16-cv-2084 JAM CKD P
v.
ORDER &
SACRAMENTO COUNTY SUPERIOR
COURT,
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.
Petitioner challenges his conviction in the Sacramento County Superior Court for “one
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count of conspiracy to commit murder, one count of aggravated kidnapping, one count of
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premeditated attempted murder, one count of first degree residential burglary, and one count of
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active participation in a criminal street gang, which resulted in a sentence of 84 years to life[.]”
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(ECF No. 1 at 3.)
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Court records reveal that petitioner challenged this same conviction in an earlier action,
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Griffin v. Gipson, No. 2:13-cv-2516 MCE GGH (E.D. Cal.), in which petitioner’s habeas claims
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were denied on the merits on March 11, 2015. (Id., ECF Nos. 20 & 21.)
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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). 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 offers no evidence that the appellate court has authorized this court to
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consider a successive petition challenging his conviction, this action should be dismissed for lack
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of jurisdiction.
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Accordingly, IT IS HEREBY ORDERED that petitioner’s request to proceed in forma
pauperis is granted.
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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. Petitioner is advised that failure to file objections within the specified time may waive the
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right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: November 3, 2016
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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2 / grif2084.succ
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