1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIS RANDOLPH, Case No. 1:19-cv-00198-JDP 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

DISMISS WRIT OF HABEAS CORPUS AS

13 v. SUCCESSIVE 14 FRESNO SUPERIOR COURT, ECF No. 1 15 Respondent. ORDER DIRECTING CLERK OF COURT TO

ASSIGN CASE TO DISTRICT JUDGE

16

OBJECTIONS DUE IN FOURTEEN DAYS

17 18 Petitioner Willis Randolph, a state prisoner without counsel, filed his fifth petition for a 19 writ of habeas corpus under 28 U.S.C. § 2254 with this court. ECF No. 1. This matter is before 20 the court for preliminary review under Rule 4 of the Rules Governing Section 2254 Cases. 21 Because petitioner has not obtained authorization from the U.S. Court of Appeals of the Ninth 22 Circuit to pursue a successive petition, this court lacks jurisdiction over the case. I recommend 23 that the court dismiss the petition for lack of jurisdiction. 24 Discussion 25 Under Rule 4, a district court must dismiss a habeas petition if it “plainly appears” that the 26 petitioner is not entitled to relief. A federal court will not consider a second or successive habeas 27 corpus petition unless the petitioner shows that (1) his claim relies on a new rule of constitutional 28 law, made retroactive by the Supreme Court, that was previously unavailable or (2) the factual 1 predicate for the claim could not have been discovered previously through the exercise of due 2 diligence. See 28 U.S.C. § 2244(b)(2). A district court may not decide whether a petition meets 3 these requirements; the petitioner must obtain the authorization from the appropriate court of 4 appeals before filing the petition. See 28 U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549 U.S. 5 147, 157 (2007). The authorization from the appropriate court of appeals is a jurisdictional 6 requirement. See Burton, 549 U.S. at 157. 7 Here, petitioner unsuccessfully pursued his other Section 2254 petitions over the course of 8 multiple years, from 1993 to 2016, challenging his state court conviction of first degree murder.1 9 On February 12, 2019, petitioner filed the instant petition for writ of habeas corpus, seeking relief 10 from his conviction due to his innocence, newly discovered evidence, prosecutorial and police 11 misconduct, ineffective assistance of counsel, and an unconstitutional jury composition. ECF No. 12 1 at 4-9. Petitioner made these same arguments in his previous habeas petitions. Petitioner has 13 not presented any proof of new evidence in support of his petition and has not cited to any new 14 Supreme Court case law that supports his positions. Most importantly, petitioner has not 15 presented authorization from the Ninth Circuit to file a successive petition under 28 16 U.S.C. § 2244(b)(3)(A). Therefore, this court lacks jurisdiction over this case, and I recommend 17 dismissal for lack of jurisdiction. 18 Certificate of Appealability 19 A petitioner seeking a writ of habeas corpus has no absolute right to appeal a district 20 court’s denial of a petition; he may appeal only in limited circumstances. See 28 U.S.C. § 2253; 21 Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 Governing Section 2254 Cases 22 requires a district court to issue or deny a certificate of appealability when entering a final order 23 adverse to a petitioner. See also Ninth Circuit Rule 22-1(a); United States v. Asrar, 116 F.3d 24 1268, 1270 (9th Cir. 1997). Where, as here, the court denies habeas relief on procedural grounds 25

1 Petitioner’s previous habeas claims were either denied or dismissed. Case number 2:93-cv- 26 00727-GEB-JFM was dismissed for failure to exhaust state remedies; 1:93-cv-05604-LJO was 27 denied on the merits; 1:13-cv-00543-SAB was denied as successive; and 1:16-cv-00592-AWI- JLT was denied as successive. Petitioner’s appeal to the Ninth Circuit, 1:93-cv-05604-LJO, was 28 denied on October 12, 2011. 1 | without reaching the underlying constitutional claims, the court should issue a certificate of 2 | appealability “if jurists of reason would find it debatable whether the petition states a valid claim 3 | of the denial of a constitutional right and that jurists of reason would find it debatable whether the 4 | district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 | “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of 6 | the case, a reasonable jurist could not conclude either that the district court erred in dismissing the 7 | petition or that the petitioner should be allowed to proceed further.” Id. 8 Here, reasonable jurists would not find my conclusion debatable or conclude that 9 | petitioner should proceed further. Thus, the court should decline to issue a certificate of 10 | appealability. 11 | Order 12 The clerk of court is directed to assign this case to a district judge who will review the 13 | following findings and recommendations. 14 | Findings and Recommendations 15 I recommend that the petition be dismissed for lack of jurisdiction and that the court 16 | decline to issue a certificate of appealability. I submit the findings and recommendations to the 17 | district judge who will be assigned to the case under 28 U.S.C. § 636(b)(1)(B) and Rule 304 of 18 || the Local Rules of Practice for the United States District Court, Eastern District of California. 19 | Within fourteen days of the service of the findings and recommendations, petitioner may file 20 | written objections to the findings and recommendations with the court and serve a copy on all 21 | parties. That document must be captioned “Objections to Magistrate Judge’s Findings and 22 | Recommendations.” The assigned district judge will then review the findings and 23 | recommendations under 28 U.S.C. § 636(b)(1)(C). 24 95 IT IS SO ORDERED. 26 ( Waban Dated: _ November 17, 2019 27 UNI STATES MAGISTRATE JUDGE 28

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