Colbert v. Bennett

Opinion

1 2 3

4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 BOBBY DARRELL COLBERT, CASE NO. 2:24-cv-00889-LK 8 Petitioner, ORDER ADOPTING REPORT AND 9 RECOMMENDATION v. 10 JASON BENNETT, 11 Respondent. 12 13

14 This matter comes before the Court on the Report and Recommendation (“R&R”) of 15 United States Magistrate Judge S. Kate Vaughan, to which no objections have been filed. Dkt. No. 16 9. Judge Vaughan recommends dismissing Petitioner Bobby Darrell Colbert’s petition for writ of 17 habeas corpus without prejudice because it is a successive petition over which this Court lacks 18 jurisdiction. Id. at 1, 3. 19 Mr. Colbert, a state prisoner proceeding pro se and in forma pauperis (“IFP”), initiated this 20 habeas action on June 21, 2024 pursuant to 28 U.S.C. § 2241. Dkt. No. 1-1 at 1; Dkt. No. 5 at 1; 21 see Dkt. No. 4 (order granting Mr. Colbert’s motion to proceed IFP). He seeks to challenge his 22 judgment and sentence entered in Skagit County Superior Court, and specifically, the legality of 23 his sentence under former Section 9.94A.712 of the Revised Code of Washington, recodified under 24 1 Section 9.94A.507. Dkt. No. 5 at 1–2, 6–7; Dkt. No. 9 at 2 n.1. In the R&R, Judge Vaughan 2 reasoned that because Mr. Colbert is a state prisoner in custody pursuant to a state court judgment, 3 his petition is properly construed under 28 U.S.C. § 2254. Dkt. No. 9 at 2 (citing White v. Lambert,

4 370 F.3d 1002, 1009–10 (9th Cir. 2004), overruled on other grounds by Hayward v. Marshall, 603 5 F.3d 546 (9th Cir. 2010) (en banc)). And, because Mr. Colbert has previously submitted eight other 6 federal habeas petitions challenging the same conviction in Skagit County Superior Court, most of 7 which have been dismissed with prejudice, Judge Vaughan concluded that the instant petition is 8 successive for purposes of 28 U.S.C. § 2244(b). Id. (citing 28 U.S.C. § 2244(a)); see also, e.g., 9 Colbert v. Bennett, 2:23-cv-01122-JNW, Dkt. Nos. 19–20 (W.D. Wash. Apr. 23, 2024); Colbert 10 v. Haynes, 2:19-cv-00467-RAJ, Dkt. No. 33 (W.D. Wash. July 8, 2020). Accordingly, the R&R 11 found that this Court is without jurisdiction to consider Mr. Colbert’s petition until the Ninth 12 Circuit authorizes its filing, and the record does not reflect such authorization. Dkt. No. 9 at 2–3

13 (citing 28 U.S.C. § 2244(b)(3)(A)). Last, the R&R recommends denying a certificate of 14 appealability because no reasonable jurist could conclude that “the issues presented are adequate 15 to deserve encouragement to proceed further.” Id. at 3 (quoting Miller-El v. Cockrell, 537 U.S. 16 322, 327 (2003)). 17 The Court “shall make a de novo determination of those portions of the report or specified 18 proposed findings or recommendations to which objection is made,” and “may accept, reject, or 19 modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 20 U.S.C. § 636(b)(1)(C); see also Fed. R. Civ. P. 72(b)(3) (the Court “must determine de novo any 21 part of the magistrate judge’s disposition that has been properly objected to”). 22 Having independently reviewed Mr. Colbert’s habeas petition and the record in this case,

23 the Court agrees that Mr. Colbert’s petition constitutes an unauthorized second or successive 24 petition that this Court is without jurisdiction to consider. Under 28 U.S.C. § 2244(b), Rule 9 of 1 the Habeas Rules, and Ninth Circuit Rule 22-3, petitioners may not file a second or successive 2 habeas petition under 28 U.S.C. § 2254 without first obtaining leave from the Ninth Circuit Court 3 of Appeals. See 28 U.S.C. § 2244(b)(3); Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). In the

4 absence of such an order authorizing review, a district court lacks jurisdiction to consider a second 5 or successive petition. See Magwood v. Paterson, 561 U.S. 320, 331 (2010); Burton v. Stewart, 6 549 U.S. 147, 157 (2007) (per curiam). Notably, “[a] habeas petition is second or successive only 7 if it raises claims that were or could have been adjudicated on the merits.” McNabb v. Yates, 576 8 F.3d 1028, 1029 (9th Cir. 2009). A disposition is “on the merits” if the district court “either 9 considers and rejects the claims or determines that the underlying claim will not be considered by 10 a federal court.” Id.; accord Brown v. Atchley, 76 F.4th 862, 865–68 (9th Cir. 2023). 11 Here, the Court finds that Mr. Colbert’s petition concerns the same state court conviction 12 he challenged in his previous habeas petitions in this district, and that none of the exceptions

13 outlined in 28 U.S.C. § 2244(b)(2) apply. Accordingly, his petition is a successive petition and he 14 was required to seek authorization from the Ninth Circuit Court of Appeals before proceeding in 15 this Court. See Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam); 28 U.S.C. 16 § 2244(b)(3). He did not do so, and the Court therefore lacks jurisdiction over his petition. See 17 Cooper, 274 F.3d at 1274; 28 U.S.C. § 2244(b)(2).1 18 For the foregoing reasons, it is hereby ORDERED that: 19 (1) The Court ADOPTS the Report and Recommendation, Dkt. No. 9; 20 (2) Mr. Colbert’s Petition for Writ of Habeas Corpus, Dkt. No. 5, is DISMISSED 21 without prejudice, and his motions to waive the R&R and to appoint standby 22

23 1 The Court notes that Mr. Colbert’s filing of “supplemental authorities” does not alter this outcome, as Erlinger v. United States, 144 S. Ct. 1840 (2024) has no bearing on the issue of filing successive habeas petitions. See Dkt. Nos. 24 8, 10. 1 counsel, Dkt. Nos. 6–7, are DENIED as moot; 2 (3) A certificate of appealability is DENIED; and 3 (4) The Clerk of Court is directed to close this case.

4 5 Dated this 12th day of August, 2024. 6 A 7 Lauren King United States District Judge 8

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24