Thomas v. Doe

Opinion

1 2 3 4 5 6 7 10 11 KEITH THOMAS, Case No. 20cv0037 JAH (AHG)

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