(HC) Lopes v. Borla

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8 UNITED STATES DISTRICT COURT

9 FOR THE EASTERN DISTRICT OF CALIFORNIA

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11 MANUEL D. LOPES, No. 2:24-cv-0161-CKD-DAD

12 Plaintiff,

13 v. ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS AND DISMISSING

14 EDWARD BORLA, HABEAS PETITION AS AN

UNAUTHORIZED SECOND OR

15 Defendant. SUCCESSIVE PETITION

16 (Doc. No. 7)

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18 Petitioner Manuel D. Lopes is a state prisoner proceeding pro se and in forma pauperis

19 with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to

20 a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

21 On February 28, 2024, the assigned magistrate judge issued findings and

22 recommendations recommending that the pending petition (Doc. No. 1) be dismissed for lack of

23 jurisdiction. (Doc. No. 11.) Specifically, the findings and recommendations concluded that the

24 pending petition is a second or successive petition and that petitioner has not first obtained leave

25 from the Ninth Circuit Court of Appeals to proceed with such a petition as is required. (Id. at 1–

26 2.)

27 Those findings and recommendations were served on petitioner and contained notice that

28 any objections thereto were to be filed within fourteen (14) days from the date of service. (Id. at

1 2.) On March 8, 2024, the court received petitioner’s timely objections to the findings and

2 recommendations. (Doc. No. 8.) Respondent filed no response to those objections.

3 In his objections, petitioner acknowledges that he has not as yet obtained authorization

4 from the Ninth Circuit Court of Appeals to file a successive petition. Petitioner instead requests a

5 certificate of appealability due to the complexity of his habeas claims. Though this argument

6 does not object to the findings of the magistrate judge as to this petition, the court notes that this

7 decision does not bar the petitioner from seeking authorization from the Ninth Circuit Court of

8 Appeals to file a successive habeas petition.

9 As the assigned magistrate judge correctly explained (Doc. No. 7 at 1–2), even if a

10 petitioner qualifies for one of the exceptions to the general bar against second or successive

11 federal habeas petitions, the petitioner “must seek authorization from the court of appeals before

12 filing his new petition with the district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008)

13 (citing 28 U.S.C. § 2244(b)(3)). Moreover, prior authorization by the court of appeals is a

14 jurisdictional requisite. See Burton v. Stewart, 549 U.S. 147, 152 (2007) (“We conclude . . . that

15 because the 2002 petition is a ‘second or successive’ petition that [the petitioner] did not seek or

16 obtain authorization to file in the District Court, the District Court never had jurisdiction to

17 consider it in the first place.”); Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018) (“If the

18 petition is second or successive, then the district court lacks jurisdiction and must dismiss the

19 petition unless and until the court of appeals grants an application to file it.”); see also Cooper v.

20 Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (same). Therefore, this court lacks jurisdiction to

21 consider that petition unless and until such authorization is obtained.

22 In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C), the court has conducted a

23 de novo review of the case. Having carefully reviewed the entire file, the court concludes that the

24 pending findings and recommendations are supported by the record and proper analysis.

25 Having determined that petitioner is not entitled to habeas relief, the court now turns to

26 whether a certificate of appealability should issue. “[A] state prisoner seeking a writ of habeas

27 corpus has no absolute entitlement to appeal a district court’s denial of his petition,” and an

28 appeal is allowed only in certain circumstances. Miller-El v. Cockrell, 537 U.S. 322, 335–36

1 | (2003); see 28 U.S.C. § 2253(c)(1)(A) (permitting habeas appeals from state prisoners only with a

2 | certificate of appealability). Where, as here, “the court denies habeas relief on procedural

3 | grounds without reaching the prisoner’s underlying constitutional claims,” the court should issue

4 | acertificate of appealability “if jurists of reason would find it debatable whether the petition

5 | states a valid claim of the denial of a constitutional right, and that jurists of reason would find it

6 || debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

7 | U.S. 473, 484 (2000). But “[w]here a plain procedural bar is present . . . a reasonable jurist

8 || [cannot] conclude either that the district court erred in dismissing the petition or that the petitioner

9 | should be allowed to proceed further.” Jd. Because the petitioner’s pending application is clearly

10 | barred on jurisdictional grounds, the court declines to issue a certificate of appealability.

11 Accordingly,

12 1. The findings and recommendations issued on February 28, 2024 (Doc. No. 7) are

13 adopted in full;

14 2. This petition for writ of habeas corpus (Doc. No. 1) is dismissed for lack of

15 jurisdiction because it is an unauthorized second or successive petition;

16 3. The court declines to issue a certificate of appealability; and

17 4. The Clerk of the Court is directed to close this case.

18 IT IS SO ORDERED.

Dated: _ September 30, 2024 Dal A. 2d, Arye

20 DALE A. DROZD

UNITED STATES DISTRICT JUDGE

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