(HC) Banks v. Phillips

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY BANKS, Case No. 1:23-cv-00175 JLT CDB (HC)

12 Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, DISMISSING 13 v. PETITION FOR WRIT OF HABEAS CORPUS AS AN UNAUTHORIZED 14 PHILLIPS, SUCCESSIVE PETITION, AND DIRECTING THE CLERK OF COURT TO CLOSE THE 15 Respondent. CASE

16 (Doc. 7)

17 Larry Banks is a state prisoner proceeding pro se with his petition for writ of habeas 18 corpus pursuant to 28 U.S.C. § 2254. (Doc. 1.) The magistrate judge performed a preliminary 19 review pursuant to Rule 4 of the Rules Governing Section 2254 Cases and found “the instant 20 petition appears to be an improper successive petition” under 28 U.S.C. § 2244(b) because 21 “Petitioner previously sought and was denied habeas relief based on the denial of the first state 22 petition for resentencing.” (Doc. 7 at 3, citing Banks v. Sherman, Cse No. 1:20-cv-01225-DAD- 23 EPG.) In addition, the magistrate judge found Petitioner failed to state a cognizable federal 24 habeas claim because he does not state “specific grounds raised or facts supporting each ground 25 as required by Habeas Rule 2(c).” (Id. at 4.) Therefore, the magistrate judge recommended the 26 Court dismiss the petition. (Id. at 5.) 27 Petitioner filed timely objections to the Findings and Recommendations, as well as an 1 conviction in the objections. (See generally Doc. 8.) Petitioner does not dispute—or even 2 acknowledge—the findings of the magistrate judge that the petition before the Court is an 3 unauthorized successive petition. Thus, Petitioner does not identify any legal or factual errors in 4 the analysis by the magistrate judge. 5 According to 28 U.S.C. § 636(b)(1), the Court performed a de novo review of the case. 6 Having carefully reviewed the entire matter, the Court concludes the Findings and 7 Recommendations are supported by the record and proper analysis. Moreover, Petitioner’s 8 amended petition, challenging the same conviction, suffers the same infirmities identified by the 9 magistrate judge and is also subject to dismissal. (See Doc. 10.) 10 The Court must also determine whether a certificate of appealability should issue. A 11 petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a district court’s 12 denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El v. 13 Cockrell, 537 U.S. 322, 335-36 (2003); 28 U.S.C. § 2253. If the Court denies a habeas petition 14 on procedural grounds, it may only issue a certificate of appealability if “jurists of reason would 15 find it debatable whether the petition states a valid claim of the denial of a constitutional right and 16 that jurists of reason would find it debatable whether the district court was correct in its 17 procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present case, the Court 18 finds that reasonable jurists would not find the determination that the petition is successive 19 debatable or wrong, or that Petitioner stated a valid claim of the denial of a constitutional right. 20 Therefore, the Court declines to issue a certificate of appealability. 21 Based upon the foregoing, the Court ORDERS: 22 1. The Findings and Recommendations issued on July 3, 2025 (Doc. 7) are 23 ADOPTED in full. 24 2. The petition for writ of habeas corpus (Doc. 1) is DISMISSED without prejudice 25 as an unauthorized successive petition. 26 3. The Clerk of Court is directed to close the case. 27 /// 1 4. The Court declines to issue a certificate of appealability. 2 3 IT IS SO ORDERED. 4| Dated: _ August 7, 2025 Charis [Tourn TED STATES DISTRICT JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28