Thomas v. Doe

Opinion

1 2 3 4 5 6 7 10 11 KEITH THOMAS, Case No. 19cv2480 LAB (AGS)

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 Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 18 § 2254 along a copy of his trust account statement, which this Court construes as a request 19 to proceed in forma pauperis. The Court does not rule on Petitioner’s request to proceed in 20 forma pauperis because this case is summarily dismissed pursuant to 28 U.S.C. 21 § 2244(b)(3)(A) as indicated below. 23 The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner 24 has submitted to this Court challenging his March 4, 2010 conviction in San Diego Superior 25 Court case number SCD221955. On July 1, 2011, Petitioner filed in a Court a Petition for 26 Writ of Habeas Corpus in case No. 11cv1488. In that petition, Petitioner challenged his 27 March 4, 2010 conviction as well. On October 20, 2015, this Court denied the petition on 28 the merits. (See Order filed Oct. 20, 2015 in case No. 11cv1488 AJB (KSC) [ECF No. 1 88].) Petitioner did not file a notice of appeal in that case until over four years later, on 2 November 21, 2019. [ECF No. 90.] On December 17, 2019, the Ninth Circuit Court of 3 Appeals dismissed Petitioner’s appeal as untimely. (See Thomas v. Atchley, et al., No. 19- 4 56384 (9th Cir. Dec. 17, 2019) [ECF No. 92].) 5 Petitioner is now seeking to challenge the same conviction he challenged in his prior 6 federal habeas petition. Unless a petitioner shows he or she has obtained an Order from 7 the appropriate court of appeals authorizing the district court to consider a successive 8 petition, the petition may not be filed in the district court. See 28 U.S.C. § 2244(b)(3)(A); 9 see also Burton v. Stewart, 549 U.S. 147, 153 (2007) (a petition is successive where it 10 challenges “the same custody imposed by the same judgment of a state court” as a prior 11 petition). A successive application is permissible “only if it rests on a new rule of 12 constitutional law, facts that were previously unavailable, or facts that would be sufficient 13 to show constitutional error in the petitioner’s conviction.” 28 U.S.C. § 2244(b)(2). “Even 14 if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek 15 authorization from the court of appeals before filing his new petition with the district 16 court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). Here, there is no indication 17 the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive 18 petition.1 20 Because there is no indication Petitioner has obtained permission from the Ninth 21 Circuit Court of Appeals to file a successive petition, this Court cannot consider his 22 Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner 23 filing a petition in this court if he obtains the necessary order from the Ninth Circuit Court 24 25

26 1 On December 18, 2019, Petitioner filed another petition for writ of habeas corpus, 27 challenging the same March 4, 2010 conviction. See Thomas v. Doe, 19cv2428 AJB (WVG) [ECF No. 1]. That petition was also dismissed as successive on January 8, 2020. 28 1 Appeals. For Petitioner’s convenience, the Clerk of Court shall attach a blank Ninth 2 Circuit Application for Leave to File Second or Successive Petition. 4 ||DATED: January 9, 2020 { dttef 44 “4 Zuni? 5 Hon. L rry Alan Burns Chief United States District Judge 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28