K'napp v. Unknown

Filing 9

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 06/15/17 granting 6 Motion to Proceed IFP. Also, RECOMMENDING that this action be dismissed without prejudice. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)

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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 ERIC CHARLES RODNEY KNAPP, 12 Petitioner, 13 14 No. 2:16-cv-2900 JAM CKD P v. ORDER AND FINDINGS AND RECOMMENDATIONS UNKNOWN, 15 Respondent. 16 Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas 17 18 corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis. 19 This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). 20 I. Application to Proceed In Forma Pauperis 21 Examination of the in forma pauperis application reveals that petitioner is unable to afford 22 the costs of suit. (ECF No. 6.) Accordingly, the application to proceed in forma pauperis will be 23 granted. See 28 U.S.C. § 1915(a). 24 II. Petition 25 In the instant petition, petitioner challenges his 1992 convictions for sexual assault in 26 Sacramento County Superior Court Case No. CR118548. (ECF No. 1 at 3.) He received “an 27 aggregate term of 98 years in prison.” (Id.) The petition asserts numerous grounds for relief, 28 including that evidence that was newly discovered in 1997, 2001, 2002, and 2004, proves his 1 1 2 innocence. (Id. at 65-73, 75-76.) The petition indicates (id. at 62, 67-68, 73, 77), and the court’s records confirm, that 3 petitioner has previously filed an application for a writ of habeas corpus attacking the conviction 4 and sentence challenged in this case and that the previous petition included the same claims of 5 actual innocence and newly discovered evidence raised in the instant petition. The previous 6 application was filed by the Clerk of the Court on March 21, 2008, and the claims were dismissed 7 as either untimely or on the merits on February 26, 2009, and September 26, 2011. Knapp v. 8 Warden of Salinas Valley State Prison, No. 2:08-cv-01040 JFM (E.D. Cal.), ECF Nos. 1, 28, 46. 9 This court takes judicial notice of the record in that proceeding. United States v. Wilson, 631 10 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other 11 cases.”). 12 Under 28 U.S.C. § 2244(b)(3)(A), a second or successive application for habeas relief 13 may not be filed in district court without prior authorization by the court of appeals. Felker v. 14 Turpin, 518 U.S. 651, 657 (1996). Prior authorization is a jurisdictional requisite. Burton v. 15 Stewart, 549 U.S. 147, 152-53 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) 16 (once district court has recognized a petition as second or successive pursuant to § 2244(b), it 17 lacks jurisdiction to consider the merits). “A habeas petition is second or successive only if it 18 raises claims that were or could have been adjudicated on the merits.” McNabb v. Yates, 576 19 F.3d 1028, 1029 (9th Cir. 2009) (citing Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008)). The 20 Ninth Circuit has held “that the dismissal of a habeas petition as untimely constitutes a disposition 21 on the merits and that a further petition challenging the same conviction would be ‘second or 22 successive’ for purposes of 28 U.S.C. § 2244(b).” Id. 23 Before petitioner can proceed with the instant application, he must move in the United 24 States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider 25 the application. 28 U.S.C. § 2244(b)(3). While it appears that petitioner did attempt to 26 simultaneously file this petition with the Ninth Circuit, it is equally clear that in ordering the 27 petition filed in this court, the Ninth Circuit was not granting leave to file a second or successive 28 petition, but instead believed that petitioner had erroneously filed an original petition in that 2 1 court. Knapp v. Unknown, No. 2:16-cv-02983 JAM CKD (E.D. Cal), ECF Nos. 1, 3. Since 2 petitioner has not yet been granted leave to file a second or successive petition, the instant 3 application must be dismissed without prejudice to its refiling upon obtaining authorization from 4 the United States Court of Appeals for the Ninth Circuit. 5 6 Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma pauperis (ECF No. 6) is granted. 7 IT IS FURTHER RECOMMENDED that this action be dismissed without prejudice. 8 These findings and recommendations are submitted to the United States District Judge 9 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 10 after being served with these findings and recommendations, petitioner may file written 11 objections with the court. The document should be captioned “Objections to Magistrate Judge’s 12 Findings and Recommendations.” If petitioner files objections, he shall also address whether a 13 certificate of appealability should issue and, if so, why and as to which issue(s). Where, as here, 14 the petition was dismissed on procedural grounds, a certificate of appealability “should issue if 15 the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the district court 16 was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it debatable 17 whether the petition states a valid claim of the denial of a constitutional right.’” Morris v. 18 Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 19 (2000)). Petitioner is advised that failure to file objections within the specified time may waive 20 the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 21 Dated: June 15, 2017 _____________________________________ CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE 22 23 24 25 13:knap1040.success.f&r 26 27 28 3

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