Perkins v. Martinez

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 4/19/2017 DISMISSING this action for lack of jurisdiction and DECLINING to issue a certificate of appealability. CASE CLOSED. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DANTE PERKINS,

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No. 2:16-cv-2690-EFB P

Petitioner,
v.

ORDER

JOEL MARTINEZ, 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 He has applied for leave to proceed in forma pauperis.

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His application shows that he satisfies the financial requirements and his application is granted.

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However, the court has reviewed the petition as required by Rule 4 of the Rules Governing

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Section 2254 Proceedings, and finds that it is second or successive and must therefore be

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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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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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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 2013 conviction for carjacking, second

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degree robbery, and possession of a firearm by a felon, entered in the Sacramento County

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Superior Court in case number 12F01436. ECF No. 1 at 2.2 The court has examined its records,

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and finds that petitioner challenged the same judgment of conviction in an earlier action.

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Specifically, in Perkins v. CDCR, No. 2:15-cv-559-KJM-DB (E.D. Cal.), the court considered

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petitioner’s challenge to the same judgment of conviction. See Perkins, ECF No. 17 (July 6, 2016

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findings and recommendations to deny petitioner’s application for a writ of habeas corpus on the

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merits); ECF No. 20 (district judge’s November 8, 2016 order adopting those findings and

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recommendations and denying petitioner’s application for a writ of habeas corpus). Petitioner

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challenges the same judgment now that was previously challenged and 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).

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Accordingly, IT IS HEREBY ORDERED that this action is dismissed for lack of

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jurisdiction and the court declines to issue a certificate of appealability.

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DATED: April 19, 2017.

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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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