Gene Evans v. The State of California

Opinion

2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 GENE EVANS, Case No. 1:26-cv-03686-FJS (HC)

12 Petitioner, ORDER DIRECTING CLERK OF COURT TO ASSIGN DISTRICT JUDGE 13 FINDINGS AND RECOMMENDATION TO 14 v. DISMISS SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS 15 [TWENTY-ONE DAY OBJECTION 16 THE STATE OF CALIFORNIA, DEADLINE] 17 Respondent.

18 19 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. He filed the instant petition in this court on May 13, 2026. 21 Because the petition is successive, the court recommends it be DISMISSED. 23 Rule 4 of the Rules Governing § 2254 Cases requires the court to make a preliminary 24 review of each petition for writ of habeas corpus. The court must dismiss a petition "[i]f it 25 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 26 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 27 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it 1 Nelson, 440 F.2d 13, 14 (9th Cir. 1971). 3 A federal court must dismiss a second or successive petition that raises the same grounds 4 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 5 petition raising a new ground unless the petitioner can show (1) that the claim rests on a new, 6 retroactive, constitutional right or (2) that the factual basis of the claim was not previously 7 discoverable through due diligence, and these new facts establish by clear and convincing 8 evidence that but for the constitutional error, no reasonable factfinder would have found the 9 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). Yet it is not the 10 district court that decides whether a second or successive petition meets these requirements. 11 Section 2244 (b)(3)(A) provides: “Before a second or successive application permitted by 12 this section is filed in the district court, the applicant shall move in the appropriate court of 13 appeals for an order authorizing the district court to consider the application.” In other words, 14 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 15 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). Hence, this 16 court must dismiss any second or successive petition unless the Ninth Circuit grants Petitioner 17 leave to file the petition because a district court lacks subject-matter jurisdiction over a second 18 or successive petition. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 19 F.3d 1270, 1274 (9th Cir. 2001). 20 In this case, Petitioner challenges his 2004 Tulare County convictions for carjacking, 21 kidnapping, and rape. Petitioner previously sought federal habeas relief in this court with 22 respect to the same conviction. See Evans v. Yates, No. 1:09-cv-01857-AWI-GSA.1 The district 23 judge ultimately adopted the magistrate judge’s recommendation that the petition be dismissed 24 as untimely. See id. at ECF Nos. 28, 33. Following Petitioner’s filing of a notice of appeal, on 25 April 27, 2012, the Ninth Circuit Court of Appeals denied Petitioner a certificate of 26 appealability. Id. at ECF No. 40. Accordingly, the court finds that the instant petition is “second 27 1 The court may take judicial notice of its own records in other cases. United States v. Wilson, 1 or successive” under § 2244(b) and should be dismissed. See McNabb v. Yates, 576 F.3d 1028, 2 1030 (9th Cir. 2009) (holding “dismissal of a first habeas petition for untimeliness presents a 3 ‘permanent and incurable’ bar to federal review of the underlying claims,” and thus renders 4 subsequent petitions “second or successive”). 6 Accordingly, the Clerk of Court is DIRECTED to randomly assign a district judge to this 7 case. 9 For the foregoing reasons, the court HEREBY RECOMMENDS that the petition be 10 DISMISSED as successive. 11 These findings and recommendations are submitted to the United States district court 12 judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 13 304 of the Local Rules of Practice for the United States District Court, Eastern District of 14 California. Within twenty-one (21) days after being served with a copy of these findings and 15 recommendations, a party may file written objections with the court and serve a copy on all 16 parties. Id. The document should be captioned, “Objections to Magistrate Judge’s Findings and 17 Recommendation” and shall not exceed fifteen (15) pages, except by leave of court with good 18 cause shown. The court will not consider exhibits attached to the objections. To the extent a 19 party wishes to refer to any exhibit(s), the party should reference the exhibit in the record by its 20 CM/ECF document and page number, when possible, or otherwise reference the exhibit with 21 specificity. The district judge may disregard any pages filed in excess of the fifteen (15) page 22 limitation. The parties are advised that failure to file objections within the specified time may 23 result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 24 2014). 25 26 27 ] These findings and recommendations are not immediately appealable to the Ninth Circuit 2 | Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate 3 | Procedure, should not be filed until entry of the district court's judgment. 4 5 TIS SO ORDERED. Ny 6 | Dated: _May 20, 2026 HZ UNITED STATES MA PRA DGE

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