Youngblood v. Superior Court of Butte County

Filing 9

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 05/17/18 RECOMMENDING that this action be dismissed for lack of jurisdiction. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JESSE L. YOUNGBLOOD,

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Petitioner,

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v.

No. 2:18-cv-0120-KJM-EFB P

FINDINGS AND RECOMMENDATIONS

SUPERIOR COURT OF BUTTE
COUNTY
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 convictions for second degree robbery and

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grand theft entered in the California Superior Court, County of Butte, case number CM017825.

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ECF No. 1 at 1. Court records reveal that petitioner previously challenged this judgment of

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conviction in an earlier action. See Youngblood v. Donovan, No. 2:11-cv-1223-LKK-DAD (E.D.

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Cal.), ECF No. 1 at 1 (May 2, 2011 petition, also referencing case number CM017825). The

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earlier filed action was dismissed as untimely. See Youngblood, ECF No. 27 (magistrate judge’s

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August 6, 2012 findings and recommendations to deny petitioner’s application for a writ of

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habeas corpus as untimely); ECF No. 29 (district judge’s September 20, 2012 order adopting

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findings and recommendations and dismissing petitioner’s application for a writ of habeas corpus

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as untimely). “[D]ismissal of a habeas petition as untimely constitutes a disposition on the merits

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and [ ] a further petition challenging the same conviction [is] ‘second or successive’ for purposes

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of 28 U.S.C. § 2244(b).” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); see also Murray

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v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (dismissal of habeas petition as time barred constitutes

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an adjudication on the merits that renders future petitions under § 2254 challenging the same

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conviction ‘second or successive’ petitions under § 2244(b).”). Since petitioner challenges the

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same judgment now that he previously challenged and which was adjudicated on the merits, the

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petition now pending is second or successive. See Youngblood v. Superior Court of Butte, 610 F.

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App’x 664 (9th Cir. 2015) (affirming district court’s dismissal of § 2254 petition as second or

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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, Rules Governing Section

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2254 Cases in the United States District Courts (the district court must issue or deny a certificate

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

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DATED: May 17, 2018.

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