Obando v. White

Ninth Circuit

Obando v. White

22 F. App'x 836

CourtCourt of Appeals for the Ninth Circuit

DecidedDecember 4, 2001

DocketNo. 00-55879; D.C. No. CV-94-06161-HLH

StatusPublished

Cited by1 cases

This text of 22 F. App'x 836 (Obando v. White) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Obando v. White, 22 F. App'x 836 (9th Cir. 2001).

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Opinion

MEMORANDUM

*

Renato Obando (“Obando”) appeals the district court’s dismissal of his fourth amended habeas corpus petition as an abuse of the writ. We review for an abuse of discretion a district court’s decision not to consider the merits of a petition for a writ of habeas corpus because it is abusive or successive. See Turner v. Duncan, 158 [837]*837F.3d 449, 455 (9th Cir.1998). Finding no abuse of discretion by the district court in dismissing Obando’s fourth amended petition, we affirm.

Obando argues that the government failed properly to plead an abuse of the writ defense. We disagree. The government pleaded abuse of the writ on numerous occasions, and both parties extensively briefed and argued it before the district court. See McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

In addition, Obando argues that the government waived the abuse of the writ defense by failing to raise it during the pen-dency of his third habeas corpus petition. By stipulation of the parties, however, the district court dismissed the third habeas corpus petition without prejudice. Upon dismissal, the actions of that petition ceased to exist. When Obando subsequently filed his fourth amended habeas corpus petition, it constituted a new action, and the government was free to assert the abuse of the writ defense. See Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

The record demonstrates that, in his first petition for a writ of habeas corpus in 1988, Obando did not file the claims he now asserts, and he has no legal excuse for having failed to do so. In that respect, the government’s assertion of the abuse of the writ defense is proper and well-taken.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

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MEMORANDUM

*

Renato Obando (“Obando”) appeals the district court’s dismissal of his fourth amended habeas corpus petition as an abuse of the writ. We review for an abuse of discretion a district court’s decision not to consider the merits of a petition for a writ of habeas corpus because it is abusive or successive. See Turner v. Duncan, 158 [837]*837F.3d 449, 455 (9th Cir.1998). Finding no abuse of discretion by the district court in dismissing Obando’s fourth amended petition, we affirm.

Obando argues that the government failed properly to plead an abuse of the writ defense. We disagree. The government pleaded abuse of the writ on numerous occasions, and both parties extensively briefed and argued it before the district court. See McCleskey v. Zant, 499 U.S. 467, 494, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991).

In addition, Obando argues that the government waived the abuse of the writ defense by failing to raise it during the pen-dency of his third habeas corpus petition. By stipulation of the parties, however, the district court dismissed the third habeas corpus petition without prejudice. Upon dismissal, the actions of that petition ceased to exist. When Obando subsequently filed his fourth amended habeas corpus petition, it constituted a new action, and the government was free to assert the abuse of the writ defense. See Slack v. McDaniel, 529 U.S. 473, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

The record demonstrates that, in his first petition for a writ of habeas corpus in 1988, Obando did not file the claims he now asserts, and he has no legal excuse for having failed to do so. In that respect, the government’s assertion of the abuse of the writ defense is proper and well-taken.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

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22 F. App'x 836, Counsel Stack Legal Research, https://law.counselstack.com/opinion/obando-v-white-ca9-2001.

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