(HC) Garcia v. Schuyler

Opinion

8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 MIGUEL GARCIA JR., Case No. 1:25-cv-00251-SAB-HC

12 Petitioner, FINDINGS AND RECOMMENDATION TO DISMISS PETITION AS UNAUTHORIZED 13 v. SUCCESSIVE PETITION

14 C. SCHUYLER, ORDER DIRECTING CLERK OF COURT TO RANDOMLY ASSIGN DISTRICT 15 Respondent. JUDGE

16 17 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. 19 I. 21 Rule 4 of the Rules Governing Section 2254 Cases requires preliminary review of a 22 habeas petition and allows a district court to dismiss a petition before the respondent is ordered 23 to file a response, if it “plainly appears from the petition and any attached exhibits that the 24 petitioner is not entitled to relief in the district court.” Rule 4, Rules Governing Section 2254 25 Cases in the United States District Courts, 28 U.S.C. foll. § 2254. 26 A federal court must dismiss a second or successive petition that raises the same grounds 27 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, 1 retroactive, constitutional right or (2) the factual basis of the claim was not previously 2 discoverable through due diligence, and these new facts establish by clear and convincing 3 evidence that but for the constitutional error, no reasonable factfinder would have found the 4 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)–(B). 5 However, it is not the district court that decides whether a second or successive petition 6 meets these requirements. Section 2244(b)(3)(A) provides: “Before a second or successive 7 application permitted by this section is filed in the district court, the applicant shall move in the 8 appropriate court of appeals for an order authorizing the district court to consider the 9 application.” In other words, Petitioner must obtain leave from the Ninth Circuit before he can 10 file a second or successive petition in the district court. See Felker v. Turpin, 518 U.S. 651, 656– 11 57 (1996). This Court must dismiss any second or successive petition unless the Court of 12 Appeals has given Petitioner leave to file the petition because a district court lacks subject-matter 13 jurisdiction over a second or successive petition. Burton v. Stewart, 549 U.S. 147, 157 (2007). 14 In the instant petition, Petitioner challenges his 2005 Fresno County Superior Court 15 conviction for first-degree murder. (ECF No. 1 at 1.1) Petitioner previously filed a federal habeas 16 petition in this Court challenging the same conviction, and that petition was denied on the merits. 17 See Order, Garcia v. Horel, No. 1:07-cv-01105-VRW (E.D. Cal. Nov. 9, 2009), ECF No. 49.2 18 The Court finds that the instant petition is “second or successive” under § 2244(b). Petitioner 19 makes no showing that he has obtained prior leave from the Ninth Circuit to file this petition. As 20 Petitioner has not obtained prior leave from the Ninth Circuit to file this successive petition, this 21 Court has no jurisdiction to consider Petitioner’s renewed application for relief under 28 U.S.C. 22 § 2254 and must dismiss the petition. See Burton, 549 U.S. at 157. 23 II. 25 Based on the foregoing, the Court HEREBY RECOMMENDS that the petition for writ of 26 habeas corpus be DISMISSED as an unauthorized successive petition.

27 1 Page numbers refer to the ECF pagination stamped at the top of the page. 2 The Court may take judicial notice of its own records in other cases. United States v. Wilson, 631 F.2d 118, 119 1 Further, the Clerk of Court is DIRECTED to randomly assign this action to a District 2 | Judge. 3 This Findings and Recommendation is submitted to the assigned United States District 4 | Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 304 of the Local 5 | Rules of Practice for the United States District Court, Eastern District of California. Within 6 | THIRTY (30) days after service of the Findings and Recommendation, Petitioner may file 7 | written objections with the Court, limited to fifteen (15) pages in length, including any 8 | exhibits. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 9 | Recommendation.” The assigned United States District Court Judge will then review the 10 | Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that 11 | failure to file objections within the specified time may waive the right to appeal the District 12 | Court’s order. Wilkerson _v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter _v. 13 | Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 14 5 IT IS SO ORDERED. FA. ee 16 | Dated: _ April 8, 2025 STANLEY A. BOONE 17 United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28