Bracken v. Muniz
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Craig M. Kellison on 05/16/18 RECOMMENDING that petitioner's petition for a writ of habeas corpus 1 be summarily dismissed without prejudice for lack of jurisdiction. Referred to Judge John A. Mendez. Objections due within 14 days. (Plummer, M)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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WILLIAM ARTHUR BRACKEN,
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No. 2:17-cv-2634-JAM-CMK-P
Petitioner,
vs.
FINDINGS AND RECOMMENDATION
WILLIAM L. MUNIZ,
Respondent.
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Petitioner, a state prisoner proceeding pro se, brings this petition for a writ of
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habeas corpus pursuant to 28 U.S.C. § 2254. Pending before the court is petitioner’s petition for
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a writ of habeas corpus (Doc. 1).
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Rule 4 of the Federal Rules Governing Section 2254 Cases provides for summary
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dismissal of a habeas petition “[i]f it plainly appears from the face of the petition and any
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exhibits annexed to it that petitioner is not entitled to relief in the district court.” Here, it is clear
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that the petitioner is not entitled to relief in this court because it lacks jurisdiction. Specifically,
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it is clear that the instant petition is a second of successive petition filed without prior leave of
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the Ninth Circuit court of Appeals. Under 28 U.S.C. § 2244(b)(1), “[a] claim presented in a
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second or successive habeas corpus application . . . that was presented in a prior application shall
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be dismissed.” Under § 2244(b)(2), “[a] claim presented in a second or successive habeas corpus
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application . . . that was not presented in a prior application shall be dismissed. . . .” unless one of
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two circumstances exist. Either the newly raised claim must rely on a new rule of constitutional
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law, or the factual predicate of the new claim could not have been discovered earlier through the
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exercise of due diligence and the new claim, if proven, establishes actual innocence. See id.
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Before a second or successive petition potentially permissible under § 2244(b)(2) can be filed,
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the petitioner must first obtain leave of the Court of Appeals. See 28 U.S.C. § 2244(b)(3). In the
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absence of proper authorization from the Court of Appeals, the district court lacks jurisdiction to
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consider a second or successive petition and must dismiss it. See Cooper v. Calderon, 274 F.3d
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1270 (9th Cir. 2001) (per curiam).
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Upon review of the instant petition, the court concludes that the court lacks
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jurisdiction because the instant petition is a second or successive petition filed without prior
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leave of the Ninth Circuit Court of Appeals. Petitioner is challenging a 2011 conviction from
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Siskiyou County. He filed a prior petition, challenging the same conviction, in 2015, case
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number 2:15-cv-0408-JKS. This prior petition was adjudicated on the merits. (See 2:15-cv-0408
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JKS, Doc. 49). Judgment was entered on August 29, 2016, and the case was closed. (See 2:15-
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cv-0408 JKS, Doc. 50). Petitioner then appealed this court’s decision, which was denied on
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May 9, 2017, for petitioner’s failure to make a substantial showing of the denial of a
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constitutional right. (See 2:15-cv-0408 JKS, Doc. 59). Petitioner has not provided authorization
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from the Court of Appeals to file a second or successive petition, and this court therefore lacks
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jurisdiction to consider the pending petition
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Based on the foregoing, the undersigned recommends that petitioner’s petition for
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a writ of habeas corpus (Doc. 1) be summarily dismissed, without prejudice, for lack of
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jurisdiction.
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///
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These findings and recommendations are submitted to the United States District
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Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 14 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. Responses to objections shall be filed within 14 days after service of
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objections. Failure to file objections within the specified time may waive the right to appeal.
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See Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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DATED: May 16, 2018
______________________________________
CRAIG M. KELLISON
UNITED STATES MAGISTRATE JUDGE
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