(HC) Iseli v. Lynch

[5] 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA [8] 9 BRANDEN WILLIE ISELI, No. 2:24-cv-00980-EFB (HC) 10 Petitioner, 11 v. ORDER AND FINDINGS AND RECOMMENDATIONS 12 JEFF LYNCH, Warden, 13 Respondent. [14] 15 Petitioner is a state prisoner proceeding without counsel in this petition for a writ of 16 habeas corpus. 28 U.S.C. § 2254 . He challenges his convictions in the Superior Court of San 17 Joaquin County for murder, attempted murder, and elder abuse. ECF No. 1. Petitioner also 18 brings a motion to proceed in forma pauperis. ECF No. 3. For the reasons that follow, the 19 petition must be dismissed as a second or successive petition. 20 A petition is second or successive if it makes “claims contesting the same custody 21 imposed by the same judgment of a state court” that the petitioner previously challenged, and on 22 which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 , 153-155 23 (2007); see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or 24 successive petition in a district court, a petitioner must obtain from the appellate court “an order 25 authorizing the district court to consider the application.” 28 U.S.C. § 2244 (b)(3)(A). Without an 26 order from the appellate court, the district court is without jurisdiction to consider a second or 27 successive petition. See Burton, 549 U.S. at 153 . [28] 1 The instant petition challenges petitioner’s convictions entered in the Superior Court of 2 San Joaquin County for murder, attempted murder, and elder abuse. ECF No. 1. A review of the 3 court’s records reveals that petitioner challenged the same convictions in an earlier action. See 4 Iseli v. Lynch, No. 2:22-cv-01483-TLN-EFB.1 In the prior action, a district judge denied the 5 petition on the merits. Id., Dckt. No. 31. Judgment was entered and the district judge declined to 6 issue a certificate of appealability. Id., Dckt. Nos. 31, 32. 7 A petitioner seeking to file a second or successive petition in a district court must first 8 “move in the appropriate court of appeals for an order authorizing the district court to consider 9 the application.” 28 U.S.C. 2244(b)(3)(A); see also Burton, 549 U.S. at 153 (“A three-judge 10 panel of the court of appeals may authorize the filing of the second or successive application only 11 if it presents a claim not previously raised that satisfied one of the two grounds articulated in § 12 2244(b)(2).”). Petitioner has offered no evidence that the United States Court of Appeals for the 13 Ninth Circuit has authorized this court to consider his second or successive petition. 14 Thus, the instant petition is a second or successive petition filed without the consent of the 15 Court of Appeals. Petitioner’s failure to procure the Ninth Circuit’s authorization to file the 16 present petition deprives this court of jurisdiction. See Burton, 549 U.S. at 153-155 ; Cooper v. 17 Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam). The petition must therefore be 18 dismissed. 19 Accordingly, it is hereby ORDERED that the Clerk of Court randomly assign a district 20 judge to this action. It is further RECOMMENDED that: 21 1. This action be dismissed on the ground that the petition is a second or successive petition, 22 and petitioner has not demonstrated that the Ninth Circuit has granted him leave to file it 23 in this court. 24 2. Petitioner’s motion to proceed in forma pauperis (ECF No. 3) be denied as moot. 25 These findings and recommendations are submitted to the United States District Judge 26 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636 (b)(1). Within fourteen days [27] 1 A court may take judicial notice of its own records in other cases. United States v. Wilson, 631 28 F.2d 118, 119-20 (9th Cir. 1980). 1 | after being served with these findings and recommendations, any party may file written 2 || objections with the court and serve a copy on all parties. Such a document should be captioned 3 || “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 4 | within the specified time may waive the right to appeal the District Court's order. Turner v. 5 || Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Yist, 951 F.2d 1153 (9th Cir. 1991). In 6 || his objections petitioner may address whether a certificate of appealability should issue in the 7 || event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing § 8 || 2255 Cases (the district court must issue or deny a certificate of appealability when it enters a 9 || final order adverse to the applicant). Lr /, Ps 11 || Dated: November 13, 2024 Zot? "ttf 7 eLACMN EDMUND F. BRENNAN 12 UNITED STATES MAGISTRATE JUDGE