Strawther v. Biter

Filing 16

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 4/17/2019 ORDERING Clerk of Court to randomly assign a U.S. District Judge to this action and RECOMMENDING this action be dismissed for lack of jurisdiction. Assigned and referred to Judge John A. Mendez. Objections due within 14 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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JUILAKI STRAWTHER,

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No. 2:18-cv-0932-EFB P

Petitioner,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

MICHAEL BITER,
Respondent.

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Petitioner, a state prisoner proceeding without counsel, seeks a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. The court has reviewed the petition as required by Rule 4 of the

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Rules Governing Section 2254 Proceedings, and finds that the petition is second or successive

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and must 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 conviction for second degree robbery

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entered against him on December 15, 2009, in the California Superior Court, County of

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Sacramento, case number 09F05830. ECF No. 1 at 1, 40-41, 50. The court has examined its

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records, and finds that petitioner challenged the same judgment of conviction in an earlier action.

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Specifically, in Strawther v. Grounds, No. 2:13-cv-1357-MCE-EFB (E.D. Cal.), the court

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considered petitioner’s challenge to the same judgment of conviction. See Strawther, ECF No. 26

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(magistrate judge’s June 24, 2015 findings and recommendations to deny petitioner’s application

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for a writ of habeas corpus on the merits); ECF No. 30 (district judge’s October 6, 2015 order

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adopting findings and recommendations and denying petitioner’s application for a writ of habeas

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corpus). Since petitioner challenges the same judgment now that he previously challenged and

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which was adjudicated on the merits, the petition now pending is second or 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 ORDERED that the Clerk of the Court randomly assign a
United States District Judge to this action.
Further, 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 (the district court must issue or deny a certificate of appealability when it enters a

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final order adverse to the applicant).

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DATED: April 17, 2019.

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