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