1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RAMON NAVARRO LUPERCIO, Case No. 1:22-cv-00338-HBK(HC) 12 Petitioner, FINDINGS AND RECOMMENDATIONS TO

DISMISS PETITION FOR LACK OF

13 v. JURISDICTION1 14 OFFICE OF THE CLERK OF COURT, OBJECTIONS DUE IN 14 DAYS 15 Respondent. (Doc. No. 1) 16 ORDER DIRECTING CLERK OF COURT TO

ASSIGN CASE TO DISTRICT JUDGE

17 18 Petitioner Ramon Navarro Lupercio, a state prisoner proceeding pro se, petitions for a writ 19 of habeas corpus under 28 U.S.C. § 2254. (Doc. No. 1). This matter is before the court for 20 preliminary review. Under Rule 4 of the Rules Governing Section 2254 Cases, the court must 21 examine the habeas corpus petition and order a response unless it “plainly appears” that the 22 petitioner is not entitled to relief. Under Rule 4, courts have “an active role in summarily 23 disposing of facially defective habeas petitions.” Ross v. Williams, 896 F.3d 958, 968 (9th Cir. 24 2018) (citation omitted). The court may dismiss claims at screening for “easily identifiable” 25 procedural defects. See id. Finding the petition successive, the undersigned recommends that 26 the petition be dismissed. 27 1 The undersigned submits these factual finding and recommendation to the District Court pursuant to 28 28 U.S.C. § 636(b)(1)(B) and Local Rule 302 (E.D. Cal. 2019). 1 I. BACKGROUND 2 Petitioner, while incarcerated in San Quentin State Prison, filed a petition for writ of 3 habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern 4 District of California on March 18, 2022. (Doc. No. 1). Finding petitioner was challenging his 5 2003 conviction for attempted murder with the use of a firearm entered by the Tulare County 6 Superior Court, the petition was transferred to this Court on March 24, 2022. (Doc. No. 7). The 7 Court takes judicial notice of its files and notes Petitioner has filed eight previous habeas petitions 8 in this Court, all challenging his 2003 conviction for attempted murder with the use of a firearm 9 entered by the Tulare County Superior Court: See Lupercio v. Gonzalez, No. 1:08-cv-00012- 10 LJO-JLT (dismissed as untimely); Lupercio v. Sherman, No. 1:15-cv-00915-DAD-MJS 11 (dismissed as successive); Lupercio v. Sherman, No. 1:15-cv-01834-DAD-MJS (same); Lupercio 12 v. Sherman, No. 1:16-cv-00233-DAD-MJS (same); Lupercio v. People of the State of California, 13 No. 1:20-cv-00925-DAD-JDP (same); Lupercio v. Visalia Police Department, No. 1:21-cv- 14 00306-DAD-JLT (same); Lupercio v. Mendoza, No. 1:21-cv-00579-DAD-JLT (same); Lupercio 15 v. Mendoza, No. 1:21-cv-00935-DAD-JLT (same). 16 Petitioner’s first petition (No. 1:08-cv-00012-LJO-JLT) was denied as untimely; and his 17 subsequent petitions were dismissed as second or successive. See McNabb v. Yates, 576 F.3d 18 1028, 1030 (9th Cir. 2009) (holding “dismissal of a first habeas petition for untimeliness presents 19 a ‘permanent and incurable’ bar to federal review of the underlying claims,” and thus renders 20 subsequent petitions “second or successive”). Nothing in the docket shows that petitioner 21 obtained an order from the Ninth Circuit Court of Appeals authorizing him to file a second or 22 successive petition. 23 II. APPLICABLE LAW AND ANALYSIS 24 A second or successive petition that raises the same grounds as a prior petition must be 25 dismissed. 28 U.S.C. § 2244(b)(1). Dismissal also is required for a second or successive petition 26 raising a new ground unless the petitioner can show that (1) the claim rests on a new constitutional 27 right, made retroactive by the United States Supreme Court or (2) the factual basis of the claim was 28 not previously discoverable through due diligence, and these new facts establish by clear and 1 convincing evidence that but for the constitutional error, no reasonable factfinder would have found 2 the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). 3 However, it is not the district court that decides whether a second or successive petition 4 meets these requirements; the petitioner must obtain leave from the Ninth Circuit Court of Appeals 5 to proceed. See § 2244 (b)(3)(A) (“Before a second or successive application permitted by this 6 section is filed in the district court, the applicant shall move in the appropriate court of appeals for 7 an order authorizing the district court to consider the application.”); Burton v. Stewart, 549 U.S. 8 147, 152-53 (2007); Chades v. Hill, 976 F.3d 1055, 1056 (9th Cir. 2020). This court is mandated 9 to dismiss a second or successive petition unless the Court of Appeals has given petitioner leave to 10 file the petition because a district court lacks subject-matter jurisdiction over a second or successive 11 petition. Burton, 549 U.S. at 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). 12 Because petitioner has sought relief from this Court on eight prior occasions for the same 13 conviction, the undersigned finds that the instant petition is an unauthorized successive petition 14 prohibited by 28 U.S.C. § 2244(b). Petitioner makes no showing that he has obtained prior leave 15 from the Ninth Circuit to file his successive petition. Therefore, this Court has no jurisdiction to 16 consider petitioner’s renewed application for relief under 28 U.S.C. § 2254 and must dismiss the 17 petition. See Burton, 549 U.S. at 157. 18 III. CERTIFICATE OF APPEALABILITY 19 State prisoners in a habeas corpus action under § 2254 do not have an automatic right to 20 appeal a final order. See 28 U.S.C. § 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 335-36 21 (2003). To appeal, a prisoner must obtain a certificate of appealability. 28 U.S.C. § 2253(c)(2); 22 see also R. Governing Section 2254 Cases 11 (requires a district court to issue or deny a certificate 23 of appealability when entering a final order adverse to a petitioner); Ninth Circuit Rule 22-1(a); 24 United States v. Asrar, 116 F.3d 1268, 1270 (9th Cir. 1997). Where, as here, the court denies 25 habeas relief on procedural grounds without reaching the merits of the underlying constitutional 26 claims, the court should issue a certificate of appealability only “if jurists of reason would find it 27 debatable whether the petition states a valid claim of the denial of a constitutional right and that 28 jurists of reason would find it debatable whether the district court was correct in its procedural 1 | ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). “Where a plain procedural bar is present 2 | and the district court is correct to invoke it to dispose of the case, a reasonable jurist could not 3 | conclude either that the district court erred in dismissing the petition or that the petitioner should 4 | be allowed to proceed further.” Jd. Here, reasonable jurists would not find the undersigned’s 5 | conclusion debatable or conclude that petitioner should proceed further. The undersigned therefore 6 || recommends that a certificate of appealability not issue. 7 Accordingly, it is RECOMMENDED: 8 1. The petition (Doc. No. 1) be dismissed as successive. 9 2. No certificate of appealability be issued. 10 3. The Clerk of Court be directed to terminate any pending motions/deadlines and 11 | close this case. 12 NOTICE TO PARTIES 13 These findings and recommendations will be submitted to the United States district judge 14 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) 15 | days after being served with these findings and recommendations, a party may file written 16 | objections with the Court. The document should be captioned “Objections to Magistrate Judge’s 17 | Findings and Recommendations.” Parties are advised that failure to file objections within the 18 | specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 19 | 838-39 (Oth Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 *I | Dated: _ April 29, 2022 Mihaw. Mh. Bareh fackte 22 HELENA M. BARCH-KUCHTA 33 UNITED STATES MAGISTRATE JUDGE

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