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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ERIC CHARLES RODNEY KNAPP,

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Petitioner,

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No. 2:16-cv-2900 JAM CKD P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

UNKNOWN,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma pauperis.

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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I.

Application to Proceed In Forma Pauperis

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Examination of the in forma pauperis application reveals that petitioner is unable to afford

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the costs of suit. (ECF No. 6.) Accordingly, the application to proceed in forma pauperis will be

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granted. See 28 U.S.C. § 1915(a).

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II.

Petition

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In the instant petition, petitioner challenges his 1992 convictions for sexual assault in

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Sacramento County Superior Court Case No. CR118548. (ECF No. 1 at 3.) He received “an

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aggregate term of 98 years in prison.” (Id.) The petition asserts numerous grounds for relief,

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including that evidence that was newly discovered in 1997, 2001, 2002, and 2004, proves his
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innocence. (Id. at 65-73, 75-76.)
The petition indicates (id. at 62, 67-68, 73, 77), and the court’s records confirm, that

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petitioner has previously filed an application for a writ of habeas corpus attacking the conviction

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and sentence challenged in this case and that the previous petition included the same claims of

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actual innocence and newly discovered evidence raised in the instant petition. The previous

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application was filed by the Clerk of the Court on March 21, 2008, and the claims were dismissed

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as either untimely or on the merits on February 26, 2009, and September 26, 2011. Knapp v.

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Warden of Salinas Valley State Prison, No. 2:08-cv-01040 JFM (E.D. Cal.), ECF Nos. 1, 28, 46.

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This court takes judicial notice of the record in that proceeding. United States v. Wilson, 631

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F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records in other

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cases.”).

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Under 28 U.S.C. § 2244(b)(3)(A), a second or successive application for habeas relief

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may not be filed in district court without prior authorization by the court of appeals. Felker v.

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Turpin, 518 U.S. 651, 657 (1996). Prior authorization is a jurisdictional requisite. Burton v.

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Stewart, 549 U.S. 147, 152-53 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001)

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(once district court has recognized a petition as second or successive pursuant to § 2244(b), it

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lacks jurisdiction to consider the merits). “A habeas petition is second or successive only if it

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raises claims that were or could have been adjudicated on the merits.” McNabb v. Yates, 576

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F.3d 1028, 1029 (9th Cir. 2009) (citing Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008)). The

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Ninth Circuit has held “that the dismissal of a habeas petition as untimely constitutes a disposition

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on the merits and that a further petition challenging the same conviction would be ‘second or

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successive’ for purposes of 28 U.S.C. § 2244(b).” Id.

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Before petitioner can proceed with the instant application, he must move in the United

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States Court of Appeals for the Ninth Circuit for an order authorizing the district court to consider

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the application. 28 U.S.C. § 2244(b)(3). While it appears that petitioner did attempt to

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simultaneously file this petition with the Ninth Circuit, it is equally clear that in ordering the

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petition filed in this court, the Ninth Circuit was not granting leave to file a second or successive

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petition, but instead believed that petitioner had erroneously filed an original petition in that
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court. Knapp v. Unknown, No. 2:16-cv-02983 JAM CKD (E.D. Cal), ECF Nos. 1, 3. Since

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petitioner has not yet been granted leave to file a second or successive petition, the instant

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application must be dismissed without prejudice to its refiling upon obtaining authorization from

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the United States Court of Appeals for the Ninth Circuit.

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Accordingly, IT IS HEREBY ORDERED that petitioner’s motion to proceed in forma
pauperis (ECF No. 6) is granted.

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IT IS FURTHER RECOMMENDED that this action be dismissed without prejudice.

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These findings and recommendations are submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days

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after being served with these findings and recommendations, petitioner may file written

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objections with the court. The document should be captioned “Objections to Magistrate Judge’s

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Findings and Recommendations.” If petitioner files objections, he shall also address whether a

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certificate of appealability should issue and, if so, why and as to which issue(s). Where, as here,

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the petition was dismissed on procedural grounds, a certificate of appealability “should issue if

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the prisoner can show: (1) ‘that jurists of reason would find it debatable whether the district court

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was correct in its procedural ruling’; and (2) ‘that jurists of reason would find it debatable

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whether the petition states a valid claim of the denial of a constitutional right.’” Morris v.

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Woodford, 229 F.3d 775, 780 (9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484

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(2000)). Petitioner is advised that failure to file objections within the specified time may waive

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the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: June 15, 2017

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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13:knap1040.success.f&r

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