1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS EUGENE GRAY, Case No. 1:22-cv-01284-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR LACK OF 13 v. JURISDICTION1 14 THE PEOPLE, OBJECTIONS DUE IN 14 DAYS 15 Respondent. (Doc. No. 1) 16 ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE 17 18 Petitioner Thomas Eugene Gray, a state prisoner proceeding pro se, petitions for a writ of 19 habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1). This matter is before the court for 20 preliminary review. Under Rule 4 of the Rules Governing Section 2254 Cases, the court must 21 examine the habeas corpus petition and order a response unless it “plainly appears” that the 22 petitioner is not entitled to relief. Under Rule 4, courts have “an active role in summarily 23 disposing of facially defective habeas petitions.” Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 24 2018) (citation omitted). The court may dismiss claims at screening for “easily identifiable” 25 procedural defects. See id. Finding the petition successive, the undersigned recommends that 26 the petition be dismissed. 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 I. BACKGROUND 2 Petitioner initiated this case on October 7, 2022 by filing the instant Petition challenging 3 his 15-year sentence imposed by the Tulare County Superior Court in 2014 after his conviction 4 for first degree burglary and assault with a deadly weapon. (Doc. No. 1 at 5, 43). Generally, 5 Petitioner claims the trial court violated the terms of his “negotiated plea agreement by making 6 unauthorized use of his guilty plea” in imposing a sentence enhancement. (Id. at 5). Specifically, 7 the Petition raises two grounds for relief: (1) ineffective assistance of trial counsel for failing to 8 “investigate and enforce” the terms of Petitioner’s plea bargain, and (2) violation of Petitioner’s 9 Boykin/Tahl rights “by not providing the required protection of the specific performance of his 10 prior negotiated plea agreement.” (Id. at 5-9). 11 The Court takes judicial notice of its files and notes Petitioner filed a previous habeas 12 petition in this Court challenging the same sentence imposed by the Tulare County Superior 13 Court. See Gray v. Asuncion, No. 1:21-cv-00595-DAD-JLT. The petition was dismissed as 14 untimely and for failure to state a cognizable federal claim. (Id. at Doc. No. 18).; See McNabb v. 15 Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding “dismissal of a first habeas petition for 16 untimeliness presents a ‘permanent and incurable’ bar to federal review of the underlying 17 claims,” and thus renders subsequent petitions “second or successive”); Plaut v. Spendthrift 18 Farms, Inc., 514 U.S. 211, 228 (1995) (“The rules of finality, both statutory and judge made, . . . 19 treat a dismissal for failure to state a claim . . . as a judgment on the merits.”). Nothing in the 20 docket shows that Petitioner obtained an order from the Ninth Circuit Court of Appeals 21 authorizing him to file a second or successive petition. 22 II. APPLICABLE LAW AND ANALYSIS 23 A second or successive petition that raises the same grounds as a prior petition must be 24 dismissed. 28 U.S.C. § 2244(b)(1). Dismissal also is required for a second or successive petition 25 raising a new ground unless the petitioner can show that (1) the claim rests on a new constitutional 26 right, made retroactive by the United States Supreme Court or (2) the factual basis of the claim was 27 not previously discoverable through due diligence, and these new facts establish by clear and 28 1 convincing evidence that but for the constitutional error, no reasonable factfinder would have found 2 the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). 3 However, it is not the district court that decides whether a second or successive petition 4 meets these requirements; the petitioner must obtain leave from the Ninth Circuit Court of Appeals 5 to proceed. See § 2244 (b)(3)(A) (“Before a second or successive application permitted by this 6 section is filed in the district court, the applicant shall move in the appropriate court of appeals for 7 an order authorizing the district court to consider the application.”); Burton v. Stewart, 549 U.S. 8 147, 152-53 (2007); Chades v. Hill, 976 F.3d 1055, 1056 (9th Cir. 2020). This court is mandated 9 to dismiss a second or successive petition unless the Court of Appeals has given petitioner leave to 10 file the petition because a district court lacks subject-matter jurisdiction over a second or successive 11 petition. Burton, 549 U.S. at 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). 12 Because Petitioner has previously sought relief from this Court for the same conviction and 13 sentence, the undersigned finds that the instant petition is an unauthorized successive petition 14 prohibited by 28 U.S.C. § 2244(b). Petitioner makes no showing that he has obtained prior leave 15 from the Ninth Circuit to file his successive petition. Therefore, this Court has no jurisdiction to 16 consider petitioner’s renewed application for relief under 28 U.S.C. § 2254 and must dismiss the 17 petition. See Burton, 549 U.S. at 157. 18 III. CERTIFICATE OF APPEALABILITY 19 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 20 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 21 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 22 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a certificate 23 of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 22-1(a); 24 United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court denies 25 habeas relief on procedural grounds without reaching the merits of the underlying constitutional 26 claims, the court should issue a certificate of appealability only “if jurists of reason would find it 27 debatable whether the petition states a valid claim of the denial of a constitutional right and that 28 jurists of reason would find it debatable whether the district court was correct in its procedural 1 | ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS EUGENE GRAY, Case No. 1:22-cv-01284-HBK (HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR LACK OF 13 v. JURISDICTION1 14 THE PEOPLE, OBJECTIONS DUE IN 14 DAYS 15 Respondent. (Doc. No. 1) 16 ORDER DIRECTING CLERK OF COURT TO ASSIGN CASE TO DISTRICT JUDGE 17 18 Petitioner Thomas Eugene Gray, a state prisoner proceeding pro se, petitions for a writ of 19 habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1). This matter is before the court for 20 preliminary review. Under Rule 4 of the Rules Governing Section 2254 Cases, the court must 21 examine the habeas corpus petition and order a response unless it “plainly appears” that the 22 petitioner is not entitled to relief. Under Rule 4, courts have “an active role in summarily 23 disposing of facially defective habeas petitions.” Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 24 2018) (citation omitted). The court may dismiss claims at screening for “easily identifiable” 25 procedural defects. See id. Finding the petition successive, the undersigned recommends that 26 the petition be dismissed. 27 1 This matter was referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 28 (E.D. Cal. 2022). 1 I. BACKGROUND 2 Petitioner initiated this case on October 7, 2022 by filing the instant Petition challenging 3 his 15-year sentence imposed by the Tulare County Superior Court in 2014 after his conviction 4 for first degree burglary and assault with a deadly weapon. (Doc. No. 1 at 5, 43). Generally, 5 Petitioner claims the trial court violated the terms of his “negotiated plea agreement by making 6 unauthorized use of his guilty plea” in imposing a sentence enhancement. (Id. at 5). Specifically, 7 the Petition raises two grounds for relief: (1) ineffective assistance of trial counsel for failing to 8 “investigate and enforce” the terms of Petitioner’s plea bargain, and (2) violation of Petitioner’s 9 Boykin/Tahl rights “by not providing the required protection of the specific performance of his 10 prior negotiated plea agreement.” (Id. at 5-9). 11 The Court takes judicial notice of its files and notes Petitioner filed a previous habeas 12 petition in this Court challenging the same sentence imposed by the Tulare County Superior 13 Court. See Gray v. Asuncion, No. 1:21-cv-00595-DAD-JLT. The petition was dismissed as 14 untimely and for failure to state a cognizable federal claim. (Id. at Doc. No. 18).; See McNabb v. 15 Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding “dismissal of a first habeas petition for 16 untimeliness presents a ‘permanent and incurable’ bar to federal review of the underlying 17 claims,” and thus renders subsequent petitions “second or successive”); Plaut v. Spendthrift 18 Farms, Inc., 514 U.S. 211, 228 (1995) (“The rules of finality, both statutory and judge made, . . . 19 treat a dismissal for failure to state a claim . . . as a judgment on the merits.”). Nothing in the 20 docket shows that Petitioner obtained an order from the Ninth Circuit Court of Appeals 21 authorizing him to file a second or successive petition. 22 II. APPLICABLE LAW AND ANALYSIS 23 A second or successive petition that raises the same grounds as a prior petition must be 24 dismissed. 28 U.S.C. § 2244(b)(1). Dismissal also is required for a second or successive petition 25 raising a new ground unless the petitioner can show that (1) the claim rests on a new constitutional 26 right, made retroactive by the United States Supreme Court or (2) the factual basis of the claim was 27 not previously discoverable through due diligence, and these new facts establish by clear and 28 1 convincing evidence that but for the constitutional error, no reasonable factfinder would have found 2 the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). 3 However, it is not the district court that decides whether a second or successive petition 4 meets these requirements; the petitioner must obtain leave from the Ninth Circuit Court of Appeals 5 to proceed. See § 2244 (b)(3)(A) (“Before a second or successive application permitted by this 6 section is filed in the district court, the applicant shall move in the appropriate court of appeals for 7 an order authorizing the district court to consider the application.”); Burton v. Stewart, 549 U.S. 8 147, 152-53 (2007); Chades v. Hill, 976 F.3d 1055, 1056 (9th Cir. 2020). This court is mandated 9 to dismiss a second or successive petition unless the Court of Appeals has given petitioner leave to 10 file the petition because a district court lacks subject-matter jurisdiction over a second or successive 11 petition. Burton, 549 U.S. at 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). 12 Because Petitioner has previously sought relief from this Court for the same conviction and 13 sentence, the undersigned finds that the instant petition is an unauthorized successive petition 14 prohibited by 28 U.S.C. § 2244(b). Petitioner makes no showing that he has obtained prior leave 15 from the Ninth Circuit to file his successive petition. Therefore, this Court has no jurisdiction to 16 consider petitioner’s renewed application for relief under 28 U.S.C. § 2254 and must dismiss the 17 petition. See Burton, 549 U.S. at 157. 18 III. CERTIFICATE OF APPEALABILITY 19 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 20 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 21 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 22 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a certificate 23 of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 22-1(a); 24 United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court denies 25 habeas relief on procedural grounds without reaching the merits of the underlying constitutional 26 claims, the court should issue a certificate of appealability only “if jurists of reason would find it 27 debatable whether the petition states a valid claim of the denial of a constitutional right and that 28 jurists of reason would find it debatable whether the district court was correct in its procedural 1 | ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present 2 | and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not 3 | conclude either that the district court erred in dismissing the petition or that the petitioner should 4 | be allowed to proceed further.” Jd. Here, reasonable jurists would not find the undersigned’s 5 | conclusion debatable or conclude that petitioner should proceed further. The undersigned therefore 6 || recommends that a certificate of appealability not issue. 7 Accordingly, it is ORDERED: 8 The clerk of court is directed to assign this case to a district judge for the purposes of 9 | reviewing these findings and recommendations. 10 It is further RECOMMENDED: 11 1. The petition (Doc. No. 1) be DISMISSED as successive. 12 2. No certificate of appealability be issued. 13 3. The Clerk of Court be directed to terminate any pending motions/deadlines and 14 | close this case. 15 NOTICE TO PARTIES 16 These findings and recommendations will be submitted to the United States district judge 17 || assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 18 || days after being served with these findings and recommendations, a party may file written 19 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 20 | Findings and Recommendations.” Parties are advised that failure to file objections within the 21 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 22 | 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). | Dated: _ October 24, 2022 Mihaw. Wh. foareh fackte 24 HELENA M. BARCH-KUCHTA 35 UNITED STATES MAGISTRATE JUDGE
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