Background
Gary Alan Eberly, a state prisoner proceeding without counsel, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 on October 25, 2025, naming A. Gonzalves as respondent. The case was referred to a magistrate judge under 28 U.S.C. § 636(b)(1)(B) and Local Rule 302(c)(17). The order does not describe the claims in the petition or the earlier proceedings that made the filing a second or successive one. That reasoning rests in the magistrate judge's findings, which are not reproduced in the document provided.
On September 28, 2026, the magistrate judge issued findings and recommendations (Doc. No. 6) recommending that the action be dismissed without prejudice as an unauthorized second or successive petition over which the district court lacked jurisdiction. The findings were served on Eberly at his address of record with notice that objections were due within fourteen days after service. According to the order, Eberly filed no objections and had not otherwise communicated with the court, and the time to object had passed.
The Court’s Holding
District Judge Dale A. Drozd, signing the order on November 1, 2026, adopted the findings and recommendations in full. The court stated that, under 28 U.S.C. § 636(b)(1)(C), it conducted a de novo review of the case. Having reviewed the entire file, it concluded that the findings and recommendations were supported by the record and by proper analysis. The order is a short adoption order and does not separately restate the underlying second-or-successive analysis.
The court dismissed the action as an unauthorized second or successive petition, without prejudice to refiling after the petitioner obtains the required authorization from the Ninth Circuit. This is a dismissal without prejudice, not a ruling on the merits of any constitutional claim, and it does not bar a later petition if authorization is obtained. The Clerk was directed to close the case.
The court also declined to issue a certificate of appealability. Citing 28 U.S.C. § 2253(c)(2), Federal Rule of Appellate Procedure 22(b), and Slack v. McDaniel, 529 U.S. 473, 484–85 (2000), it applied the two-part test for procedural dismissals. It concluded that reasonable jurists would not find the dismissal debatable, wrong, or deserving of encouragement to proceed further.
Key Takeaways
- The petition was dismissed as an unauthorized second or successive petition, and the magistrate judge's recommendation, which the court adopted, rested on the district court lacking jurisdiction over it.
- The dismissal is without prejudice, but any refiling must follow authorization from the Ninth Circuit; the order does not say whether Eberly will seek that authorization or whether it would be granted.
- Eberly filed no objections within the fourteen-day period, yet the court still performed a de novo review of the case before adopting the recommendations.
- The court declined a certificate of appealability under the Slack standard for procedural rulings, finding that jurists of reason would not debate the dismissal.
- The order decides nothing about the merits of the claims or the earlier petition, and the document does not describe either.
Why It Matters
The order is a routine illustration of how a federal district court handles a habeas petition that appears to be a second or successive filing. A petitioner who has previously sought federal habeas relief cannot simply file a new petition in the district court. The order sends the matter to the Ninth Circuit by dismissing without prejudice and expressly conditioning any refiling on that court's authorization. Because the case was closed, the practical next step lies with the court of appeals rather than the district court.
The order is unreported and non-precedential. It adds no new law and relies on settled standards for adopting findings and recommendations and for certificates of appealability. It also leaves open the details of the earlier proceeding, the claims raised, and whether Eberly will pursue authorization. The denial of a certificate of appealability reflects only the district court's view, and the order does not discuss any further avenues for review.