Oubichon v. Rackley

Filing 6

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 10/3/2017 RECOMMENDING this action be dismissed for lack of jurisdiction. Referred to Judge John A. Mendez; Objections to F&R due within 14 days. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RAYMOND LIONEL OUBICHON,

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No. 2:17-cv-0752-JAM-EFB P

Petitioner,
v.

FINDINGS AND RECOMMENDATIONS

RONALD RACKLEY, Warden,
Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254. The court has reviewed the petition as required by Rule 4 of the Rules

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Governing Section 2254 Proceedings, and finds that the petition is second or successive and must

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therefore be dismissed.

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A petition is second or successive if it makes “claims contesting the same custody

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imposed by the same judgment of a state court” that the petitioner previously challenged, and on

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which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007);

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see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive

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petition in a district court, a petitioner must obtain from the appellate court “an order authorizing

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the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Without an order from

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the appellate court, the district court is without jurisdiction to consider a second or successive

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petition. See Burton, 549 U.S. 147.

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In the present action, petitioner challenges the conviction for attempted criminal threats

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entered in the California Superior Court, County of Placer, case number 62009078. ECF No. 1 at

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1. The court has examined its records, and finds that petitioner challenged the same judgment of

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conviction in an earlier action. Specifically, in Oubichon v. CDCR, No. 2:07-cv-0838-GEB-CHS

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(E.D. Cal.), the court considered petitioner’s challenge to the same judgment of conviction. See

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Oubichon, ECF No. 42 (magistrate judge’s December 1, 2008 findings and recommendations to

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deny petitioner’s application for a writ of habeas corpus on the merits); ECF No. 46 (district

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judge’s January 21, 2009 order adopting findings and recommendations and denying petitioner’s

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application for a writ of habeas corpus). Since petitioner challenges the same judgment now that

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he previously challenged and which was adjudicated on the merits, the petition now pending is

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second or successive.

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Petitioner offers no evidence that the appellate court has authorized this court to consider

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a second or successive petition. Since petitioner has not demonstrated that the appellate court has

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authorized this court to consider a second or successive petition, this action must be dismissed for

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lack of jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th

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Cir. 2001) (per curiam).

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Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed for lack of
jurisdiction.

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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, any party may file written

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objections with the court and serve a copy on all parties. Such a document should be captioned

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“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

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shall be served and filed within fourteen days after service of the objections. Failure to file

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objections within the specified time may waive the right to appeal the District Court’s order.

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Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir.

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1991). In his objections petitioner may address whether a certificate of appealability should issue

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in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing
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Section 2254 Cases in the United States District Courts (the district court must issue or deny a

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certificate of appealability when it enters a final order adverse to the applicant).

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DATED: October 3, 2017.

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