Opinion
NO. C17-358-RAJ-JPD
04-04-2017
CRAIG S. COLEMAN, Petitioner, v. JEFFREY UTTECHT, Respondent.
REPORT AND RECOMMENDATION
Pro se petitioner Craig Coleman filed an application to proceed in forma pauperis and a proposed petition for habeas corpus pursuant to 28 U.S.C. § 2254. Dkts. 1-1 & 4. As explained below, the petition should be transferred to the Ninth Circuit Court of Appeals as successive.
Petitioner previously filed a habeas petition in this Court. The Court denied the petition, dismissed the case with prejudice, denied a certificate of appealability, and denied petitioner's motion for reconsideration. Coleman v. Neal, C14-486-JCC (Dkts. 24, 26, 27, 31).
It is apparent from a review of petitioner's current filing that he seeks to challenge the same conviction previously addressed by this Court. Compare Dkt. 1-1 at 1, 7, 11, with Coleman, C14-486-JCC (Dkts. 7 & 24). As petitioner previously attempted to challenge this conviction, the instant petition must be deemed successive. This Court is without jurisdiction to consider such a petition or motion until the Ninth Circuit has authorized its filing. 28 U.S.C. § 2244(b)(3)(A).
The Court herein construes petitioner's proposed petition as a request for permission to file a successive petition. Accordingly, this case should be transferred to the Ninth Circuit, in the interests of justice, pursuant to 28 U.S.C. § 1631. Petitioner is advised that this transfer does not of itself constitute compliance with § 2244(b)(3) and Ninth Circuit Rule 22-3. Petitioner must still file a motion for leave to proceed in the Court of Appeals and make the requisite showing required by § 2244(b)(2). Petitioner is referred to this statute for further information.
In sum, the Court recommends transferring this matter to the Ninth Circuit as a request for permission to file a second or successive petition. The Clerk should be directed to close this case and transfer all original documents to the Ninth Circuit, while retaining a copy of the petition and this Order in the file. A proposed Order of Transfer is attached.
Objections to this Report and Recommendation, if any, should be filed with the Clerk and served upon all parties to this suit by no later than April 25, 2017. Failure to file objections within the specified time may affect your right to appeal. Objections should be noted for consideration on the District Judge's motion calendar for the third Friday after they are filed. Responses to objections may be filed within fourteen (14) days after service of objections. If no timely objections are filed, the matter will be ready for consideration by the District Judge on April 28, 2017. // // //
This Report and Recommendation is not an appealable order. Thus, a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge acts on this Report and Recommendation.
DATED this 4th day of April, 2017.
/s/_________
JAMES P. DONOHUE
Chief United States Magistrate Judge