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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 DANTE PERKINS, 12 13 14 No. 2:16-cv-2690-EFB P Petitioner, v. ORDER JOEL MARTINEZ, Warden, 15 Respondent. 16 17 Petitioner is a state prisoner proceeding without counsel on a petition for a writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. 1 He has applied for leave to proceed in forma pauperis. 19 His application shows that he satisfies the financial requirements and his application is granted. 20 However, the court has reviewed the petition as required by Rule 4 of the Rules Governing 21 Section 2254 Proceedings, and finds that it is second or successive and must therefore be 22 dismissed. 23 A petition is second or successive if it makes “claims contesting the same custody 24 imposed by the same judgment of a state court” that the petitioner previously challenged, and on 25 which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); 26 27 28 1 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). 1 see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive 2 petition in a district court, a petitioner must obtain from the appellate court “an order authorizing 3 the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Without an order from 4 the appellate court, the district court is without jurisdiction to consider a second or successive 5 petition. See Burton, 549 U.S. 147. 6 In the present action, petitioner challenges his 2013 conviction for carjacking, second 7 degree robbery, and possession of a firearm by a felon, entered in the Sacramento County 8 Superior Court in case number 12F01436. ECF No. 1 at 2.2 The court has examined its records, 9 and finds that petitioner challenged the same judgment of conviction in an earlier action. 10 Specifically, in Perkins v. CDCR, No. 2:15-cv-559-KJM-DB (E.D. Cal.), the court considered 11 petitioner’s challenge to the same judgment of conviction. See Perkins, ECF No. 17 (July 6, 2016 12 findings and recommendations to deny petitioner’s application for a writ of habeas corpus on the 13 merits); ECF No. 20 (district judge’s November 8, 2016 order adopting those findings and 14 recommendations and denying petitioner’s application for a writ of habeas corpus). Petitioner 15 challenges the same judgment now that was previously challenged and adjudicated on the merits. 16 Accordingly, his current petition is second or successive. 17 Petitioner offers no evidence that the appellate court has authorized this court to consider 18 a second or successive petition. Since petitioner has not demonstrated that the appellate court has 19 authorized this court to consider a second or successive petition, this action must be dismissed for 20 lack of jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 21 Cir. 2001) (per curiam). 22 Accordingly, IT IS HEREBY ORDERED that this action is dismissed for lack of 23 jurisdiction and the court declines to issue a certificate of appealability. 24 DATED: April 19, 2017. 25 26 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

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