Opinion
No. 2:13-cv-1095-EFB P
2013-10-21
FRANCISCO GAILE GUYTON, Petitioner, v. P.D. BRAZELTON, Respondent.
ORDER
Petitioner, a state prisoner without counsel, has filed a petition for a writ of habeas corpus. See 28 U.S.C. § 2254. The court has reviewed the petition as required by Rule 4 of the Rules Governing Section 2254 Proceedings, and finds that the petition is second or successive and must therefore be dismissed.
This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1) and is before the undersigned pursuant to petitioner's consent. See 28 U.S.C. § 636; see also E.D. Cal. Local Rules, Appx. A, at (k)(4).
A petition is second or successive if it makes "claims contesting the same custody imposed by the same judgment of a state court" that the petitioner previously challenged, and on which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007); see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive petition in a district court, a petitioner must obtain from the appellate court "an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Without an order from the appellate court, the district court is without jurisdiction to consider a second or successive petition. See Burton, 549 U.S. 147.
In the present action, petitioner challenges a judgment of conviction entered in the San Joaquin County Superior Court on or around April 16, 1999, for failing to register in violation of Cal. Pen. Code § 290(g)(2), and for which petitioner was sentenced to a state prison term of 25 years to life. See Petition (ECF No. 1) at 1, 8 (referencing case number SC063981). The court has examined its records, and finds that petitioner challenged this same conviction in an earlier action. In Guyton v. Lewis, No. 2:02-cv-1377-FCD-GGH P, ECF, the court considered petitioner's challenge to his 1999 conviction for failure to register and denied the petition on its merits. See Guyton, ECF. No. 48 (magistrate judge's Sept. 12, 2005 finding and recommendations to deny petition); ECF No. 49 (district judge's Dec. 7, 2005 order adopting findings and recommendations and denying petitioner's application for a writ of habeas corpus).
Because petitioner challenges herein the same judgment that he previously challenged and which was adjudicated on the merits, this petition is second or successive. Petitioner offers no evidence that the appellate court has authorized this court to consider a second or successive petition. Therefore, this action must be dismissed for lack of jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam).
Accordingly, it is hereby ORDERED that this action is dismissed for lack of jurisdiction. The court declines to issue a certificate of appealability.
___________________
EDMUND F. BRENNAN
UNITED STATES MAGISTRATE JUDGE