Anderson v. Pfeiffer

Filing 6

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Allison Claire on 3/1/2018 GRANTING 2 Motion to Proceed IFP; ORDERING Clerk of Court to randomly assign a U.S. District Judge to this action; and RECOMMENDING this action be dismissed without prejudice. Referred to Judge Kimberly J. Mueller. Objections due within 21 days after being served with these findings and recommendations. (Henshaw, R)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DION ANDERSON,

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Petitioner,

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No. 2:17-cv-1917 AC P

v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

CHRISTIAN PFEIFFER,

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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.
I.

Application to Proceed In Forma Pauperis
Examination of the in forma pauperis application reveals that petitioner is unable to afford

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the costs of suit. ECF No. 2. 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
In the instant petition, petitioner challenges his 1999 conviction for multiple robberies

which resulted in a forty-nine-year sentence. ECF No. 1 at 1.

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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 petition is successive within the meaning of 28

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U.S.C. § 2244(b) where it “seeks to add a new ground for relief” or “if it attacks the federal

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court’s previous resolution of a claim on the merits.” Gonzalez v. Crosby, 545 U.S. 524, 532

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(2005) (emphasis in original). “[A] ‘claim’ as used in § 2244(b) is an asserted federal basis for

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relief from a state court’s judgment of conviction.” Id. at 530. “Even if a petitioner can

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demonstrate that he qualifies for one of [the] exceptions [to filing a second or successive

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petition], he must seek authorization from the court of appeals before filing his new petition with

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the district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (citing 28 U.S.C. §

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2244(b)(3)).

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The petition indicates (ECF No. 1 at 2), and the court’s records confirm, that petitioner

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

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sentence challenged in this case. The previous application was docketed on March 1, 2006, and

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was denied as untimely on September 14, 2007. Anderson v. Evans, No. 2:06-cv-0429 LKK

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DAD (E.D. Cal.), ECF Nos. 1, 18, 20. This court takes judicial notice of the record in that

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proceeding. United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take

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judicial notice of its own records in other cases.”). The Ninth Circuit has held “that the dismissal

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of a habeas petition as untimely constitutes a disposition on the merits and that a further petition

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challenging the same conviction would be ‘second or successive’ for purposes of 28 U.S.C. §

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2244(b).” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).

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Before petitioner can proceed on his claims, he must obtain from the United States Court

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of Appeals for the Ninth Circuit an order authorizing the district court to consider the application.

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28 U.S.C. § 2244(b)(3). Petitioner has not provided any evidence that he has received the

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required authorization. The undersigned will therefore recommend that this action be dismissed

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without prejudice to re-filing once petitioner receives authorization to proceed from the Ninth

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Circuit.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to proceed in forma pauperis (ECF No. 2), is granted.

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2. The Clerk of the Court randomly assign a United States District Judge to this action.

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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 twenty-one 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.” Petitioner is advised that failure to file objections within the

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

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

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DATED: March 1, 2018

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