Gerolaga v. Rackley

Filing 6

ORDER signed by Magistrate Judge Allison Claire on 3/31/2017 GRANTING petitioner's 5 motion to proceed IFP, the $5.00 filing fee is waived. Petiitoner's petition for writ of habeas corpus is DISMISSED without prejudice to its refiling with a copy of an order from the Ninth Circuit Court of Appeals that authorizes petitioner to file a second or successive petition. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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TONY GEROLAGA, JR.,

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Petitioner,

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No. 2:17-cv-0454 AC P

v.

ORDER

RONALD RACKLEY,

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Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed an application 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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Petitioner has consented to the jurisdiction of the undersigned United States Magistrate Judge for

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all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 305(a). See ECF No. 4.
Examination of the in forma pauperis application reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See

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28 U.S.C. § 1915(a). However, for the reasons discussed below, the $5.00 fee will be waived.

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Under Rule 4 of the Rules Governing Section 2254 Cases, this court is required to conduct

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a preliminary review of all petitions for writ of habeas corpus filed by state prisoners. Pursuant to

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Rule 4, this court must summarily dismiss a petition if it “plainly appears from the petition and

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any attached exhibits that the petitioner is not entitled to relief in the district court.”

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Review of the instant petition demonstrates that petitioner is challenging his 2003

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conviction and sentence. Review of petitioner’s exhibits and prior filings in this court

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demonstrate that this is his second petition for writ of habeas corpus filed pursuant to 28 U.S.C. §

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2254.1 The first petition, which also challenged petitioner’s 2003 conviction and sentence, was

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filed in this court on October 27, 2008. See Gerolaga v. Evans, Case No. 2:08-cv-02542 LKK

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DAD P (E.D. Cal). On March 10, 2010, the court granted respondent’s motion to dismiss

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because the petition was barred by the statute of limitations and because petitioner failed to allege

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facts supporting his actual innocence under Schlup v. Delo, 513 U.S. 298 (1995).

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A second or successive application for habeas relief may not be filed in district court

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without prior authorization from the Ninth Circuit Court of Appeals. See 28 U.S.C. § 2244(b);

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Felker v. Turpin, 518 U.S. 651, 656-57 (1996). Prior authorization is a jurisdictional requisite.

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

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2001) (once district court has recognized a petition as second or successive pursuant to § 2244(b),

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it lacks jurisdiction to consider the merits). The district court has discretion either to transfer a

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successive petition to the Court of Appeals or to dismiss the petition. United States v. Winestock,

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340 F.3d 200 (4th Cir. 2003) (§ 2255 case); Robinson v. Johnson, 313 F.3d 128, 139–140 (3rd

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Cir. 2002).

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A petition is successive within the meaning of 28 U.S.C. § 2244(b) where it “seeks to add

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a new ground for relief,” or “if it attacks the federal court’s previous resolution of a claim on the

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merits . . .” Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (emphasis deleted). “[A] ‘claim’ as

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used in § 2244(b) is an asserted federal basis for relief from a state court’s judgment of

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conviction.” Id. at 530. “A habeas petition is second or successive only if it raises claims that

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were or could have been adjudicated on the merits.” McNabb v. Yates, 576 F.3d 1028, 1029 (9th

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

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A third case (petitioner’s first-filed case) was dismissed without prejudice on December 12,
2006, due to petitioner’s failure to file the appropriate documents. See Gerolaga v. Kramer, Case
No. 2:06-cv-02396 WBS DAD P (E.D. Cal.).
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The principal claims asserted in the present case – three claims premised on the alleged

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ineffective assistance of trial counsel, and one claim against the trial court asserting double

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jeopardy2 – could have been adjudicated on the merits in a timely-filed federal habeas proceeding.

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The untimeliness of petitioner’s first petition, precluding any merits consideration, does not alter

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the fact that petitioner’s instant petition is successive. Petitioner is “contesting the same custody

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imposed by the same judgment of a state court,” and is therefore “required to receive

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authorization from the Court of Appeals before filing his second challenge. Because he did not do

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so, the District Court [is] without jurisdiction to entertain it.” Burton, 549 U.S. at 153.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s request to proceed in forma pauperis, ECF No. 5, is granted; nevertheless,
the $5.00 filing fee is waived.

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2. Petitioner’s petition for a writ of habeas corpus, ECF No. 1, is dismissed without

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prejudice to its refiling with a copy of an order from the Ninth Circuit Court of Appeals that

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authorizes petitioner to file a second or successive petition.

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3. The Clerk of Court is directed to close this case.

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SO ORDERED.

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DATED: March 31, 2017

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Petitioner also makes a clearly frivolous claim for abuse of discretion by each of the California
courts for denying his petitions.
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