Stribling v. Muniz

Filing 8

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Deborah Barnes on 11/26/2018 GRANTING 3 Motion to Proceed IFP, DIRECTING the Clerk of Court to randomly assign a district judge to this action, and RECOMMENDING that this action be dismissed without prejudice. District Judge Morrison C. England, Jr. has been assigned. The case number for all future documents shall be: 2:17-cv-01143-MCE-DB (HC). Referred to Judge Morrison C. England, Jr. Objections due within 14 days after being served with these findings and recommendations. (Huang, H)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

AARON LAMONT STRIBLING,

12

No. 2:17-cv-1143 DB P

Petitioner,

13

v.

14

MUNIZ,

15

ORDER AND FINDINGS AND
RECOMMENDTIONS
Respondent.

16
Petitioner, a state prisoner proceeding pro se, has filed a petition for writ of habeas corpus

17
18

pursuant to 28 U.S.C. § 2254. Petitioner claims his conviction and incarceration are illegal

19

because he was apprehended and charged without the issuance of an arrest warrant. Presently

20

before the court is petitioner’s motion to proceed in forma pauperis (ECF No. 3) and his petition

21

for screening (ECF No. 1). For the reasons set forth below, the court will grant the motion to

22

proceed in forma pauperis and dismiss the petition without prejudice.
IN FORMA PAUPERIS

23

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

24
25

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

26

28 U.S.C. § 1915(a).

27

////

28

////
1

1

SCREENING

2

I.

Screening Requirement

3

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

4

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

5

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

6

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

7

II.

The Petition

8

Petitioner states the basis for relief is his 2007 conviction and sentence in the Sacramento

9

Superior Court. (ECF No. 1 at 1.) The court’s records reveal that petitioner previously filed two

10

petitions for writ of habeas corpus attacking the same conviction and sentence challenged in the

11

instant case.1 Petitioner’s first habeas petition was filed in this court in December 2012 and

12

dismissed in 2013 because it was barred by the statute of limitations. See Stribling v. Grounds,

13

No. 2:12-cv-3084 MCE KJN P (E.D. Cal.). Petitioner’s second petition challenging his 2007

14

conviction was filed in this court in December 2016 and dismissed in June 2017. See Stribling v.

15

Baughman, No. 2:17-cv-0253 AC P (E.D. Cal.). Petitioner was informed in the dismissal order

16

that he was required to receive authorization from the court of appeals before filing a second

17

challenge to the 2007 conviction.

18

III.

19

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

20

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

21

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

22

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

23

2001) (once district court has recognized a petition as second or successive pursuant to § 2254(b),

24

it lacks jurisdiction to consider the merits).

25

////

26
27
28

1

A court may take judicial notice of its own records and the records of other courts. See MGIC
Indem. Co. v. Weisman, 803 F.2d 500, 505 (9th Cir. 1986); United States v. Wilson, 631 F.2d
118, 119 (9th Cir. 1980).
2

1

“[A] ‘claim’ as used in § 2244(b) is an asserted federal basis for relief from a state court’s

2

judgment of conviction.” Gonzalez v. Crosby, 545 U.S. 524, 530 (2005). “A habeas petition is

3

second or successive only if it raises claims that were or could have been adjudicated on the

4

merits.” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing Woods v. Carey, 525

5

F.3d 886, 888 (9th Cir. 2008)). “[D]ismissal of a habeas petition as untimely constitutes a

6

disposition on the merits and . . . a further petition challenging the same conviction” is “‘second

7

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

8
9

Petitioner is presently “contesting the same custody imposed by the same judgment of a
state court” that he challenged in Stribling v. Grounds, No. 2:12-cv-3084 MCE KJN P (E.D.

10

Cal.), which was dismissed on the merits. Before petitioner can proceed with the instant petition,

11

he must move in, and obtain from, the Ninth Circuit Court of Appeals, an order authorizing the

12

district court to consider the merits of his successive petition. See 28 U.S.C. § 2244(b)(3).

13

Absent such authorization, the instant petition must be dismissed without prejudice. Id.

14

CONCLUSION

15

Because petitioner previously filed a petition for writ of habeas corpus attacking the same

16

conviction and sentence challenged in this case, his petition must be dismissed without prejudice

17

to its re-filing should petitioner obtain authorization from the Ninth Circuit Court of Appeals.

18

Accordingly, IT IS HEREBY ORDERED that:

19

1. Petitioner’s motion to proceed in forma pauperis (ECF No. 3) is granted; and

20

2. The Clerk of the Court is directed to randomly assign a district judge to this action

21

IT IS HEREBY RECOMMENDED that this action be dismissed without prejudice

22

because it is premised on an unauthorized successive petition for writ of habeas corpus under 28

23

U.S.C. § 2254.

24

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

25

assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen days

26

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

27

objections with the court. The documents should be captions “Objections to Magistrate Judge’s

28

Findings and Recommendations.” Petitioner is advised that failure to file objections within the
3

1

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

2

F.2d 1153 (9th Cir. 1991).

3

Dated: November 26, 2018

4
5
6
7

DLB:12
DLB:1/Orders/Prisoner-Habeas/stri1143.scrn

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4