Patel v. Warden

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/19/17 ordering this action is dismissed for lack of jurisdiction. The clerk is directed to close the case. The court declines to issue a certificate of appealability. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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PAREN HASMUKHBHAI PATEL,

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No. 2:16-cv-2294-EFB P

Petitioner,
v.

ORDER

WARDEN,

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Respondent.

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Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. 1 The court has reviewed the petition as required by Rule 4

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of the Rules Governing Section 2254 Proceedings, and finds that the petition is second or

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successive and must 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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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See 28 U.S.C. § 636;
see also E.D. Cal. Local Rules, Appx. A, at (k)(4).

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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 2008 conviction for domestic violence

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entered in the Shasta County Superior Court in case number 08F2568. ECF No. 1 at 1, 6.2 The

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court has examined its records, and finds that petitioner challenged the same judgment of

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conviction in an earlier action. Specifically, in Patel v. Swarthout, No. 2:09-cv-2923-MCE-CMK

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(E.D. Cal.), the court considered petitioner’s challenge to the same judgment of conviction. See

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Patel, ECF No. 31 (magistrate judge’s December 1, 2010 findings and recommendations to deny

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petitioner’s application for a writ of habeas corpus on the merits); ECF No. 33 (district judge’s

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February 1, 2011 order adopting findings and recommendations and denying petitioner’s

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application for a writ of habeas corpus). Petitioner challenges the same judgment now that he

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previously challenged in his earlier petition which has been adjudicated on the merits.

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Accordingly, his current petition 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).3

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Accordingly, IT IS HEREBY ORDERED that:

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1. This action is dismissed for lack of jurisdiction;

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2. The Clerk is directed to close the case; and

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/////
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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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The court appears to also lack subject matter jurisdiction because petitioner was not in
custody pursuant to the 2008 judgment of conviction when he filed his petition. See ECF No. 1 at
7 (stating that “petitioner has completed 100% of his sentence”); see also Woodall v. Beauchamp,
450 F. App'x 655, 657 (9th Cir. 2011) (habeas petitioner must be in custody as a result of the
challenged conviction, not on unrelated charges).
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3. The court declines to issue a certificate of appealability.
DATED: April 19, 2017.

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