Bracken v. Muniz

Filing 16

ORDER signed by District Judge John A. Mendez on 8/15/2018 ADOPTING 11 FINDINGS AND RECOMMENDATIONS: No certificate of appealability shall issue and the Clerk of the Court is directed to close this case. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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WILLIAM ARTHUR BRACKEN,

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No. 2:17-cv-2634-JAM-CMK-P

Petitioner,
v.

ORDER

WILLIAM L. MUNIZ,

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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. This matter was referred to a United States

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Magistrate Judge pursuant to Eastern District of California local rules.

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On May 16, 2018, the Magistrate Judge filed findings and recommendations herein

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which were served on the parties and which contained notice that the parties may file objections

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within a specified time. Timely objections to the findings and recommendations have been filed.

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In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 304,

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this court has conducted a de novo review of this case. Having carefully reviewed the entire file

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and, the court finds the findings and recommendations to be supported by the record and by

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proper analysis.

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Petitioner contends this court has jurisdiction to hear his claims of actual

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innocence as he already filed his petition in “the lower courts.” However, petitioner appears to be

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confused as to the proper procedure. As the magistrate judge set forth, in order to file a second or

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successive petition in this Court pursuant to 28 U.S.C. § 2244, petitioner must obtain

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authorization from the Ninth Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(3); Cooper v.

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Calderon, 274 F.3d 1270 (9th Cir. 2001) (per curiam). Petitioner provided notice that he filed a

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petition with the California Court of Appeal, who denied the petition in April 2018. However,

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filing a second petition in the California Court system does not meet the requirement of § 2244.

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Authorization must be obtained from the Ninth Circuit Court of Appeals. Until such
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authorization is obtained, this court lacks jurisdiction to consider the petition filed in this action.
Pursuant to Rule 11(a) of the Federal rules Governing Section 2254 Cases, the

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court has considered whether to issue a certificate of appealability. Before petitioner can appeal

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this decision, a certificate of appealability must issue. See 28 U.S.C. § 2253(c); Fed. R. App. P.

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22(b). Where the petition is denied on the merits, a certificate of appealability may issue under

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28 U.S.C. § 2253 “only if the applicant has made a substantial showing of the denial of a

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constitutional right.” 28 U.S.C. § 2253(c)(2). The court must either issue a certificate of

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appealability indicating which issues satisfy the required showing or must state the reasons why

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such a certificate should not issue. See Fed. R. App. P. 22(b). Where the petition is dismissed on

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procedural grounds, a certificate of appealability “should issue if the prisoner can show: (1) ‘that

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jurists of reason would find it debatable whether the district court was correct in its procedural

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ruling’; and (2) ‘that jurists of reason would find it debatable whether the petition states a valid

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claim of the denial of a constitutional right.’” Morris v. Woodford, 229 F.3d 775, 780 (9th Cir.

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2000) (quoting Slack v. McDaniel, 529 U.S. 473, 120 S. Ct. 1595, 1604 (2000)). For the reasons

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set forth in the Magistrate Judge’s findings and recommendations, the court finds that issuance of

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a certificate of appealability is not warranted in this case.

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Accordingly, IT IS HEREBY ORDERED that:

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1. The findings and recommendations filed May 16, 2018, are adopted in full;

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2. Petitioner’s petition for writ of habeas corpus (Doc. 1) is summarily dismissed,

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without prejudice, for lack of jurisdiction;

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3. No certificate of appealability shall issue; and

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4. The Clerk of the Court is directed to close this case.

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DATED: August 15, 2018
/s/ John A. Mendez____________
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UNITED STATES DISTRICT COURT JUDGE

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