Thomas v. Doe

• Court: District Court, S.D. California
• Decided: January 8, 2020
• Docket: 3:19-cv-02428
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEITH THOMAS, Case No. 19cv2428 AJB (WVG)

12 Plaintiff, SUMMARY DISMISSAL OF 13 v. SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. 14 JOHN DOE, Warden, et al., § 2244(b)(3)(A) GATEKEEPER 15 Defendants. PROVISION 16 17 On December 18, 2019, Petitioner filed a Petition for Writ of Habeas Corpus 18 pursuant to 28 U.S.C. § 2254. The instant Petition, however, is not the first Petition for a 19 Writ of Habeas Corpus Petitioner has submitted to this Court challenging his March 4, 20 2010 conviction in San Diego Superior Court case number SCD221955. On July 1, 21 2011, Petitioner filed in a Court a Petition for Writ of Habeas Corpus in case No. 22 11cv1488. In that petition, Petitioner challenged his March 4, 2010 conviction as well. 23 On October 20, 2015, this Court denied the petition on the merits. See Thomas v. Doe, 24 Case No. 11cv1488 AJB (KSC), Order (Oct. 20, 2015) [ECF No. 88]. Petitioner did not 25 file a notice of appeal in that case until over four years later, on November 21, 2019. See 26 id., Not. of Appeal (Nov. 21, 2019) [ECF No. 90.] On December 17, 2019, the Ninth 27 Circuit Court of Appeals dismissed Petitioner’s appeal as untimely. See Thomas v. 28 Atchley, et al., No. 19-56384 (9th Cir. Dec. 17, 2019) [ECF No. 92]. 1 Petitioner is now seeking to challenge the same conviction he challenged in his 2 || prior federal habeas petition. Unless a petitioner shows he or she has obtained an Order 3 || from the appropriate court of appeals authorizing the district court to consider a 4 || successive petition, the petition may not be filed in the district court. See 28 U.S.C. § 5 || 2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 153 (2007) (a petition is 6 || successive where it challenges “the same custody imposed by the same judgment of a 7 || state court” as a prior petition). A successive application is permissible “only if it rests 8 |}on a new rule of constitutional law, facts that were previously unavailable, or facts that 9 || would be sufficient to show constitutional error in the petitioner’s conviction.” 28 U.S.C. 10 || § 2244(b)(2). “Even if a petitioner can demonstrate that he qualifies for one of these 11 |}exceptions, he must seek authorization from the court of appeals before filing his new 12 || petition with the district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). 13 || Here, there is no indication the Ninth Circuit Court of Appeals has granted Petitioner 14 || leave to file a successive petition. 15 CONCLUSION 16 Because there is no indication Petitioner has obtained permission from the Ninth 17 || Circuit Court of Appeals to file a successive petition, this Court cannot consider his 18 || Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner 19 || filing a petition in this court if he obtains the necessary order from the Ninth Circuit 20 ||Court of Appeals. For Petitioner’s convenience, the Clerk of Court shall attach a blank 21 || Ninth Circuit Application for Leave to File Second or Successive Petition. 22 IT IS SO ORDERED. 23 ||Dated: J anuary 6, 2020 | ZS Zz : Le 24 Hon. Anthony J.Battaglia 25 United States District Judge 26 27 28