September 6, 2013
JIMMY LEROY RAMSEYER, Petitioner,
PAT GLEBE, Respondent.
ORDER ADOPTING REPORT AND RECOMMENDATION
BENJAMIN H. SETTLE, District Judge.
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 4), and Petitioner Jimmy Leroy Ramseyer's ("Ramseyer") objections to the R&R (Dkt. 5).
In 2005, Ramsayer filed a habeas corpus petition that challenged the same conviction as the one he challenges today. See Ramseyer v. Smelser, C05-5006 FDB. The Court denied the petition on the merits (05-5006 FDB Dkt. 49). Ramseyer's third ground for relief in his prior petition contained a claim that his conviction violated due process because the Washington Court held that stipulated facts agreed to pursuant to Cr.R. 4.5(g) were not binding on the state at trial (05-5006 FDB Dkt. 1 at 8). On April 12, 2012, Ramseyer filed another petition raising the same ground for relief (12-5317 BHS Dkt. 5). That petition was transferred to the Ninth Circuit (12-5317 BHS Dkt. 23).
As Judge Strombom found, Ramseyer's current petition "raises the same ground for relief." Dkt. 4 at 1. The Court agrees with Judge Strombom's R&R, just as the Court agreed with it in Ramseyer's prior case (12-5317 BHS Dkt. 23). Thus, despite Ramseyer's objection that his case was not adjudicated on the merits, as Judge Strombom found, a review of his prior petitions and orders indicates otherwise. Thus, the Court finds that Ramseyer's petition is a second or successive petition for which the petitioner must seek authorization from the Court of Appeals before filing with the district court. Dkt. 4 at 2 ( citing 28 U.S.C. § 2244(b)(3)(A) and Ninth Circuit Rule 22-3).
Ramseyer's other arguments, that the Court should consider his objections (or perhaps his petition) as a "Refiling of First Petition For Writ of Habeas Corpus" and that equitable tolling should apply because Judge Burgess erred in adopting Judge Strombom's previous R&R, are not relief which this Court can grant. Dkt. 5 at 1 and 3-4. The record in Ramseyer's prior case before Judge Burgess reflects that the Ninth Circuit denied his certificate of appealability (05-5006 FDB Dkt. 67) in that case.
The Court having considered the R&R, Petitioner's objections, and the remaining record, does hereby find and order as follows:
(1) The R&R is ADOPTED;
(2) Ramsayer's 28 U.S.C. § 2254 petition (Dkt. 1-1) is TRANSFERRED to the Ninth Circuit as a second or successive petition; and
(3) Ramseyer's motion for leave to proceed in forma pauperis (Dkt. 1) is DENIED.