1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 KENNETH A. JACKSON, Case No. 1:20-cv-00351-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR LACK OF 13 v. JURISDICTION 14 G. MATTESON, OBJECTIONS DUE IN THIRTY DAYS 15 Respondent. ECF No. 1 16 ORDER DIRECTING CLERK TO ASSIGN CASE TO DISTRICT JUDGE 17 18 Petitioner Kenneth A. Jackson, a state prisoner without counsel, seeks a writ of habeas 19 corpus under 28 U.S.C. § 2254. ECF No. 1. This matter is before us for preliminary review 20 under Rule 4 of the Rules Governing Section 2254 Cases. See R. Governing § 2254 Cases 4; 28 21 U.S.C. § 2243. Under Rule 4, a district court must dismiss a habeas petition if it “plainly 22 appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 23 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Courts have “an active 24 role in summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. 25 Williams, 896 F.3d 958, 968 (9th Cir. 2018) (citation omitted). Petitioner makes two claims for 26 relief: (1) that a felony complaint is the improper vehicle for initiating a criminal case in 27 California and (2) that there was insufficient evidence at trial to convict petitioner of arson and 28 conspiracy. ECF No. 1 at 16, 35. 1 Discussion 2 A federal court has an independent duty to examine its jurisdiction. See Kwai Fun Wong 3 v. Beebe, 732 F.3d 1030, 1036 (9th Cir. 2013). “Under the [Antiterrorism and Effective Death 4 Penalty Act’s] second or successive petition provisions, any claim that has been adjudicated in a 5 previous petition must be dismissed.” Hall v. Haws, 861 F.3d 977, 984 (9th Cir. 2017) (citing 28 6 U.S.C. § 2244(b)(1)). “Likewise, a claim presented in a second or successive petition that was 7 not presented in a prior application ‘shall be dismissed unless’ certain criteria are met.” Gonzalez 8 v. Sherman, 873 F.3d 763, 767 (9th Cir. 2017) (quoting 28 U.S.C. § 2244(b)(2)). New claims in a 9 successive petition must be dismissed unless the petitioner can show that the claims rely on (1) a 10 new rule of constitutional law made retroactive to cases on collateral review by the Supreme 11 Court, or (2) a new fact not previously discoverable through due diligence. See 28 U.S.C. 12 § 2244(b)(2)(A)-(B). Even if a petitioner meets one of these requirements, he must also show 13 that “no reasonable factfinder would have found the petitioner guilty of the underlying offense” 14 based on the facts underlying the claim, but for constitutional error. See id. The Court of 15 Appeals, not a district court, decides whether a successive petition meets these requirements. 16 Section 2244(b)(3)(A) provides: 17 Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the 18 appropriate court of appeals for an order authorizing the district court to consider the application. 19 20 See also Felker v. Turpin, 518 U.S. 651, 656-57 (1996). Failure to obtain authorization from the 21 appropriate Court of Appeals is a jurisdictional defect, and the district court presented with an 22 unauthorized successive petition must dismiss it for lack of jurisdiction. See Burton v. Stewart, 23 549 U.S. 147, 157 (2007). 24 On December 8, 2017, petitioner sought habeas relief in this court from the same 25 conviction at issue in the instant petition. See Pet. at 1, Jackson v. Arnold, No. 1:17-cv-01670- 26 LJO-JDP (E.D. Cal. Dec. 4, 2019) [hereinafter Jackson I].1 Petitioner argued, inter alia, that a 27 1 Petitioner has also unsuccessfully sought habeas relief in this court on two other occasions. On 28 August 24, 2018, petitioner sought relief from his prison’s calculation of his parole credits; the 1 felony complaint is an improper vehicle for initiating a criminal case in California. Id. We found 2 the petition meritless and recommended its dismissal. F&R at 1-4, Jackson I. The petition was 3 dismissed on December 4, 2019. Order Adopting F&R at 1, Jackson I. In the instant petition, he 4 again argues that a felony complaint is the improper vehicle for initiating a criminal case in 5 California and raises a second claim of insufficient evidence. See ECF No. 1 at 16, 35. 6 Petitioner has not presented authorization from the U.S. Court of Appeals for the Ninth 7 Circuit to file a successive petition under 28 U.S.C. § 2244(b)(3)(A); this alone warrants 8 dismissal. Even if petitioner were to seek Ninth Circuit authorization, denial would be almost 9 certain because his first claim, that his felony complaint was improper, has already been denied 10 on the merits in his previous habeas petition and his second claim, insufficient evidence, does not 11 meet the requirements of 28 U.S.C. § 2244(b)(2)(A)-(B). Petitioner has not presented any proof 12 of new evidence in support of his insufficient evidence claim, has not identified any new U.S. 13 Supreme Court case law that supports his position, and has not shown that no reasonable 14 factfinder would have found him guilty, but for the alleged constitutional error. We recommend 15 dismissal for lack of jurisdiction.2 16 Certificate of Appealability 17 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 18 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 19 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 20 requires a District Court to issue or deny a certificate of appealability when entering a final order 21 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d
22 petition was summarily dismissed as non-cognizable. See Jackson v. Neuschmid, No. 2:18-cv- 23 02319-JAM-EFB (E.D. Cal. Feb. 6, 2019). On March 18, 2019, petitioner sought relief on the same grounds as those in the instant petition. See Jackson v. Neuschmid, No. 1:19-cv-00357- 24 LJO-SAB (E.D. Cal. Oct. 8, 2019). This petition was dismissed on procedural grounds. Id. 2 Additionally, the petition appears untimely. Under AEDPA, petitioners seeking habeas relief 25 under § 2254 must comply with a one-year statute of limitations. For most habeas petitioners, the one-year clock starts to run on “the date on which the judgment became final by the conclusion of 26 direct review or the expiration of the time for seeking such review.” 42 U.S.C.
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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 KENNETH A. JACKSON, Case No. 1:20-cv-00351-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO DISMISS PETITION FOR LACK OF 13 v. JURISDICTION 14 G. MATTESON, OBJECTIONS DUE IN THIRTY DAYS 15 Respondent. ECF No. 1 16 ORDER DIRECTING CLERK TO ASSIGN CASE TO DISTRICT JUDGE 17 18 Petitioner Kenneth A. Jackson, a state prisoner without counsel, seeks a writ of habeas 19 corpus under 28 U.S.C. § 2254. ECF No. 1. This matter is before us for preliminary review 20 under Rule 4 of the Rules Governing Section 2254 Cases. See R. Governing § 2254 Cases 4; 28 21 U.S.C. § 2243. Under Rule 4, a district court must dismiss a habeas petition if it “plainly 22 appears” that the petitioner is not entitled to relief. See Valdez v. Montgomery, 918 F.3d 687, 693 23 (9th Cir. 2019); Boyd v. Thompson, 147 F.3d 1124, 1127 (9th Cir. 1998). Courts have “an active 24 role in summarily disposing of facially defective habeas petitions” under Rule 4. Ross v. 25 Williams, 896 F.3d 958, 968 (9th Cir. 2018) (citation omitted). Petitioner makes two claims for 26 relief: (1) that a felony complaint is the improper vehicle for initiating a criminal case in 27 California and (2) that there was insufficient evidence at trial to convict petitioner of arson and 28 conspiracy. ECF No. 1 at 16, 35. 1 Discussion 2 A federal court has an independent duty to examine its jurisdiction. See Kwai Fun Wong 3 v. Beebe, 732 F.3d 1030, 1036 (9th Cir. 2013). “Under the [Antiterrorism and Effective Death 4 Penalty Act’s] second or successive petition provisions, any claim that has been adjudicated in a 5 previous petition must be dismissed.” Hall v. Haws, 861 F.3d 977, 984 (9th Cir. 2017) (citing 28 6 U.S.C. § 2244(b)(1)). “Likewise, a claim presented in a second or successive petition that was 7 not presented in a prior application ‘shall be dismissed unless’ certain criteria are met.” Gonzalez 8 v. Sherman, 873 F.3d 763, 767 (9th Cir. 2017) (quoting 28 U.S.C. § 2244(b)(2)). New claims in a 9 successive petition must be dismissed unless the petitioner can show that the claims rely on (1) a 10 new rule of constitutional law made retroactive to cases on collateral review by the Supreme 11 Court, or (2) a new fact not previously discoverable through due diligence. See 28 U.S.C. 12 § 2244(b)(2)(A)-(B). Even if a petitioner meets one of these requirements, he must also show 13 that “no reasonable factfinder would have found the petitioner guilty of the underlying offense” 14 based on the facts underlying the claim, but for constitutional error. See id. The Court of 15 Appeals, not a district court, decides whether a successive petition meets these requirements. 16 Section 2244(b)(3)(A) provides: 17 Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the 18 appropriate court of appeals for an order authorizing the district court to consider the application. 19 20 See also Felker v. Turpin, 518 U.S. 651, 656-57 (1996). Failure to obtain authorization from the 21 appropriate Court of Appeals is a jurisdictional defect, and the district court presented with an 22 unauthorized successive petition must dismiss it for lack of jurisdiction. See Burton v. Stewart, 23 549 U.S. 147, 157 (2007). 24 On December 8, 2017, petitioner sought habeas relief in this court from the same 25 conviction at issue in the instant petition. See Pet. at 1, Jackson v. Arnold, No. 1:17-cv-01670- 26 LJO-JDP (E.D. Cal. Dec. 4, 2019) [hereinafter Jackson I].1 Petitioner argued, inter alia, that a 27 1 Petitioner has also unsuccessfully sought habeas relief in this court on two other occasions. On 28 August 24, 2018, petitioner sought relief from his prison’s calculation of his parole credits; the 1 felony complaint is an improper vehicle for initiating a criminal case in California. Id. We found 2 the petition meritless and recommended its dismissal. F&R at 1-4, Jackson I. The petition was 3 dismissed on December 4, 2019. Order Adopting F&R at 1, Jackson I. In the instant petition, he 4 again argues that a felony complaint is the improper vehicle for initiating a criminal case in 5 California and raises a second claim of insufficient evidence. See ECF No. 1 at 16, 35. 6 Petitioner has not presented authorization from the U.S. Court of Appeals for the Ninth 7 Circuit to file a successive petition under 28 U.S.C. § 2244(b)(3)(A); this alone warrants 8 dismissal. Even if petitioner were to seek Ninth Circuit authorization, denial would be almost 9 certain because his first claim, that his felony complaint was improper, has already been denied 10 on the merits in his previous habeas petition and his second claim, insufficient evidence, does not 11 meet the requirements of 28 U.S.C. § 2244(b)(2)(A)-(B). Petitioner has not presented any proof 12 of new evidence in support of his insufficient evidence claim, has not identified any new U.S. 13 Supreme Court case law that supports his position, and has not shown that no reasonable 14 factfinder would have found him guilty, but for the alleged constitutional error. We recommend 15 dismissal for lack of jurisdiction.2 16 Certificate of Appealability 17 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 18 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 19 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 20 requires a District Court to issue or deny a certificate of appealability when entering a final order 21 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d
22 petition was summarily dismissed as non-cognizable. See Jackson v. Neuschmid, No. 2:18-cv- 23 02319-JAM-EFB (E.D. Cal. Feb. 6, 2019). On March 18, 2019, petitioner sought relief on the same grounds as those in the instant petition. See Jackson v. Neuschmid, No. 1:19-cv-00357- 24 LJO-SAB (E.D. Cal. Oct. 8, 2019). This petition was dismissed on procedural grounds. Id. 2 Additionally, the petition appears untimely. Under AEDPA, petitioners seeking habeas relief 25 under § 2254 must comply with a one-year statute of limitations. For most habeas petitioners, the one-year clock starts to run on “the date on which the judgment became final by the conclusion of 26 direct review or the expiration of the time for seeking such review.” 42 U.S.C. § 2244(d)(1)(A). 27 Petitioner’s most recent state post-conviction application challenging his underlying conviction was denied review on October 24, 2018. He filed his federal petition on March 6, 2020. 28 1 1268, 1270 (9th Cir. 1997). Where, as here, the court denies habeas relief on procedural grounds 2 without reaching the underlying constitutional claims, the court should issue a certificate of 3 appealability “if jurists of reason would find it debatable whether the petition states a valid claim 4 of the denial of a constitutional right and that jurists of reason would find it debatable whether the 5 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 6 “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of 7 the case, a reasonable jurist could not conclude either that the district court erred in dismissing the 8 petition or that the petitioner should be allowed to proceed further.” Id. 9 Here, reasonable jurists would not find our conclusion debatable or conclude that 10 petitioner should proceed further. Thus, the court should decline to issue a certificate of 11 appealability. 12 Findings and Recommendations 13 We recommend that the petition be dismissed and that the court decline to issue a 14 certificate of appealability. We submit the findings and recommendations to the U.S. District 15 Court judge who will be assigned to the case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the 16 Local Rules of Practice for the United States District Court, Eastern District of California. Within 17 thirty days of the service of the findings and recommendations, petitioner may file written 18 objections to the findings and recommendations with the court and serve a copy on all parties. 19 That document must be captioned “Objections to Magistrate Judge’s Findings and 20 Recommendations.” The assigned district judge will then review the findings and 21 recommendations under 28 U.S.C. § 636(b)(1)(C). 22 Order 23 The clerk of court is directed to assign this case to a district judge for the purpose of 24 reviewing these findings and recommendations.
25 26 27 28 1 5 IT IS SO ORDERED. ° p : —N prssann — Dated: April 9, 2020 4 UNI STATES MAGISTRATE JUDGE 5 6 | No. 206. 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28