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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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11 ALBERTO LIZARRAGA, Case No. 1:23-cv-01543-SKO (HC)

12 Petitioner, FINDINGS AND RECOMMENDATION TO

DISMISS SUCCESSIVE PETITION FOR

13 v. WRIT OF HABEAS CORPUS

14 UNITED STATES DISTRICT COURT, ORDER DIRECTING CLERK OF COURT

TO ASSIGN DISTRICT JUDGE

15 Respondent. [TWENTY-ONE DAY OBJECTION 16 DEADLINE]

17 18 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 19 pursuant to 28 U.S.C. § 2254. He filed the instant petition in the Sacramento Division of this 20 District on September 25, 2023. The petition was transferred to this Court on October 31, 2023. 21 Because the petition is successive, the Court will recommend it be DISMISSED. 22 DISCUSSION 23 Rule 4 of the Rules Governing § 2254 Cases requires the Court to make a preliminary 24 review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it 25 plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the 26 Rules Governing § 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 27 1990). A petition for habeas corpus should not be dismissed without leave to amend unless it 1 440 F.2d 13, 14 (9th Cir. 1971). 2 A federal court must dismiss a second or successive petition that raises the same grounds 3 as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive 4 petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, 5 retroactive, constitutional right or 2) the factual basis of the claim was not previously 6 discoverable through due diligence, and these new facts establish by clear and convincing 7 evidence that but for the constitutional error, no reasonable factfinder would have found the 8 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the 9 district court that decides whether a second or successive petition meets these requirements. 10 Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by 11 this section is filed in the district court, the applicant shall move in the appropriate court of 12 appeals for an order authorizing the district court to consider the application." In other words, 13 Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive 14 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must 15 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave 16 to file the petition because a district court lacks subject-matter jurisdiction over a second or 17 successive petition. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 18 1270, 1274 (9th Cir. 2001). 19 In this case, Petitioner challenges his 2013 conviction in the Kern County Superior Court 20 for attempted murder with great bodily injury enhancements. Petitioner previously sought 21 federal habeas relief in this Court with respect to the same conviction in Lizarraga v. Lundy, 22 Case No. 1:23-cv-00888-JLT-SKO. The petition was dismissed with prejudice on August 29, 23 2023, for failure to establish a ground for federal habeas relief. This dismissal constitutes a 24 determination on the merits for purposes of the “second or successive” rule. See Graham v. 25 Costello, 299 F.3d 129, 133 (2d Cir. 2002) (denying relief in first petition on ground that claim 26 was not cognizable under Stone v. Powell). 27 The Court finds that the instant petition is second or successive under 28 U.S.C. § 1 file his successive petition. Therefore, this Court has no jurisdiction to consider Petitioner’s 2 renewed application for relief under 28 U.S.C. § 2254 and must dismiss the petition. See Burton, 3 549 U.S. at 157. 4 ORDER 5 Accordingly, the Clerk of Court is DIRECTED to assign a District Judge to this case. 6 RECOMMENDATION 7 For the foregoing reasons, the Court HEREBY RECOMMENDS that the petition be 8 DISMISSED as successive. 9 This Findings and Recommendation is submitted to the United States District Court 10 Judge assigned to this case, pursuant to the provisions of 28 U.S.C. section 636 (b)(1)(B) and 11 Rule 304 of the Local Rules of Practice for the United States District Court, Eastern District of 12 California. Within twenty-one days after being served with a copy, Petitioner may file written 13 objections with the Court. Such a document should be captioned “Objections to Magistrate 14 Judge’s Findings and Recommendation.” The Court will then review the Magistrate Judge’s 15 ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). Petitioner is advised that failure to file objections 16 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 17 Ylst, 951 F.2d 1153 (9th Cir. 1991). 18

IT IS SO ORDERED.

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20 Dated: November 1, 2023 /s/ Sheila K. Oberto .

UNITED STATES MAGISTRATE JUDGE

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