Thyrone Ryan Stewart v. James Hill

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10

11 THYRONE RYAN STEWART, Case No. EDCV 23-0544-MWF (KS)

12 Petitioner ORDER ACCEPTING REPORT 13 v. AND RECOMMENDATION OF UNITED STATES MAGISTRATE 14 JAMES HILL, et al., JUDGE AND DENYING A CERTIFICATE OF 15 Respondents. APPEALABILITY

16 17 On June 7, 2023, the assigned Magistrate Judge issued a Report and 18 Recommendation (“Report”) recommending the Court dismiss this action without 19 prejudice because the operative First Amended Petition (“FAP”) was an 20 unauthorized second or successive petition under 28 U.S.C. § 2244(b)(2). (Docket 21 No. 12). That same day, the Clerk of the Court issued a notice to Petitioner that he 22 could file objections to the Report. (Docket No. 11). However, no objections were 23 received. 24 On July 24, 2023, the United States Court of Appeals for the Ninth Circuit 25 issued an order explaining that Petitioner had filed a federal habeas petition in that 26 court that references this action and included a “Motion for C.O.A. And objection to 27 Recommendation,” which appeared to be Petitioner’s objections to the June 7, 2023 28 Report in this case. (Docket No. 13). Because federal habeas petitions must be 1 made to the district court, the Ninth Circuit transferred the filing to this Court “for 2 whatever consideration [it] deems appropriate.” (Docket No. 13 at 1-2; Docket No. 3 13-1). 4 The Court has reviewed the petition filed in the Ninth Circuit and it is a 5 photocopy of the FAP at issue here. (Compare Docket No. 8 at 1-10 with Docket 6 No. 13-1 at 1-10). As such, the Court interprets Petitioner’s filing as a whole as his 7 objections to the Report in this case, and a request for a certificate of appealability 8 (“COA”). He merely filed in the wrong court and included a copy of the FAP. 9 The objections do not specify any particular portion of the Report Petitioner 10 disagrees with; rather, he appears to only generally object to the Report’s overall 11 conclusion that the FAP is a second or successive petition (Docket No. 13-1 at 27- 12 28). See Thomas v. Arn, 474 U.S. 140, 149 (1985) (“The statute [pertaining to 13 objections review] does not on its face require any review at all, by either the district 14 court or the court of appeals, of any issue that is not the subject of an objection.”). 15 Moreover, while Petitioner claims that “two new grounds have been discovered . . . 16 which are new evidence” (Docket No. 13-1 at 27)—a repeat of an argument already 17 made in the FAP (see Docket No. 8 at 9-10)—he has failed to challenge the Report’s 18 conclusion that he did not obtain authorization from the Ninth Circuit to file the 19 FAP here first (Docket No. 12 at 6-7). As the Report outlines in detail, the Ninth 20 Circuit has repeatedly denied Petitioner’s requests to file second or successive 21 petitions, and no such authorization was approved for filing of the FAP (id.). See, 22 e.g., Doyle v. Fender, No. CV 17-68-BU-DLC-JCL, 2017 WL 5889804, at *1 (D. 23 Mont. Nov. 29, 2017) (“even if circumstances support [petitioner]’s assertion that 24 his claim qualifies within the narrow exception to the second or successive habeas 25 petition bar[, such as the claim resting on new law, new evidence, or actual 26 innocence], a prisoner wishing to file a successive habeas petition in federal district 27 court must first receive authorization from the Court of Appeals”); Tierney v. 28 Abercrombie, No. 1:11-CV-00246 LEK, 2012 WL 3776487, at *6 (D. Haw. Aug. 1 || 29, 2012) (court may not consider “general claim of ‘new evidence,’ .. . absent 2 || authorization from the Ninth Circuit). 3 Accordingly, Petitioner’s objections are overruled. The Court accepts the 4 || Report and adopts it as its own findings and conclusions. Judgment shall be entered 5 || DISMISSING this action without prejudice because the FAP is an unauthorized 6 || second or successive petition under 28 U.S.C. § 2244(b)(2). 7 Finally, for the reasons stated in the Report and this Order, Petitioner’s COA 8 || Request (Docket No. 13-1 at 26) 1s DENIED. See 28 U.S.C. § 2253(c)(2); Fed. R. 9 || App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 10 || 529 U.S. 473, 484 (2000). _ 12 || Dated: August 18, 2023 fw MICHAEL W. FITZG D United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28