United States District Court, N.D. California
MICHAEL J. LANDI, Petitioner,
M. E. SPEARMAN, Acting Warden, Respondent.
ORDER GRANTING RESPONDENT'S MOTION TO DISMISS; AND DENYING CERTIFICATE OF APPEALABILITY
SAUNDRA BROWN ARMSTRONG, District Judge.
Petitioner, a state prisoner proceeding pro se, seeks a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Respondent has moved to dismiss the petition as successive under 28 U.S.C. § 2244(b). Dkt. 4. Petitioner opposes the motion to dismiss. Respondent filed a reply to the opposition.
Having read and considered the papers filed in connection with this matter and being fully informed, the Court hereby GRANTS Respondent's motion to dismiss for the reasons set forth below.
In September 1995, Petitioner was sentenced in the Santa Clara County Superior Court to forty-five years to life in state prison. Pet. at 2-3. He entered a no contest plea to forcible lewd and lascivious acts on a child under age fourteen, and he admitted to a sentencing enhancement alleging that he had two or more prior sex offense convictions. Id.
On November 20, 1996, the California Court of Appeal affirmed the judgment. Resp't Ex. 1. On February 26, 1997, the California Supreme Court denied his petition for review. Resp't Ex. 2.
In 1998 and 1999, Petitioner filed several state habeas petitions challenging his 1995 conviction, which were all denied. Resp't Exs. 3, 4.
On September 21, 1999, Petitioner filed his first federal habeas petition challenging his 1995 conviction. Case No. C 99-4301 SBA (PR). This Court dismissed his first federal petition with prejudice as untimely, and entered judgment for Respondent. Id . On March 11, 2002, the Ninth Circuit Court of Appeals affirmed the dismissal. Landi v. Hickman, No. 01-15730, 32 Fed.Appx. 383 (9th Cir. 2002). On March 26, 2003, the United States Supreme Court denied a petition for a writ of certiorari. Landi v. Hickman , 538 U.S. 924 (2003). On December 7, 2007, this Court denied Petitioner's Motion for Relief from Judgment. Resp't Exs. 5, 6.
In 2011 and 2012, Petitioner filed a second round of state habeas petitions challenging his 1995 conviction in the Santa Clara County Superior Court, California Court of Appeal, and California Supreme Court, all of which were denied. Pet. at 8; Resp't Exs. 7, 8.
On March 19, 2013, Petitioner filed the instant federal habeas petition, again challenging his 1995 conviction.
A claim presented in a second or successive petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 must be dismissed if presented in a prior petition. See 28 U.S.C. § 2244(b)(1); Babbitt v. Woodford , 177 F.3d 744, 745-46 (9th Cir. 1999). Similarly, if a claim was previously presented, then asserting a new factual basis for that claim in a second or successive petition is not sufficient to prevent dismissal. See id. at 746 (ineffective assistance claim based on counsel's alcohol abuse successive of claim that counsel failed to present Post Traumatic Stress Disorder claim). As a consequence, a petitioner must obtain an order from the court of appeals which authorizes the district court to consider any second or successive petition before that petitioner can file such a petition. See 28 U.S.C. § 2244(b)(3)(A). Without such an order, a district court must dismiss the successive petition, including any new claims raised in that petition. See id. § 2244(b)(2).
Here, Respondent contends that the instant petition is successive because Petitioner has filed a prior federal habeas petition, which challenged the same underlying state conviction - the 1995 conviction. Mot. to Dismiss at 3-4. As mentioned above, in his first federal habeas action, Case No. C 99-4301 SBA (PR), this Court granted Respondent's motion to dismiss the petition as untimely under 28 U.S.C. § 2244(d). Respondent contends this Court has no jurisdiction to consider Petitioner's renewed application for relief because Petitioner has made no showing that he obtained an order from the Ninth Circuit allowing him to file a successive petition. Thus, Respondent asserts the petition must be dismissed as successive under 28 U.S.C. § 2244(b).
In his opposition, Petitioner does not deny that he filed a previous federal habeas petition, as shown by Respondent. Rather, Petitioner asks the Court to consider one of the following options: (1) to hold his petition in abeyance while he seeks authorization from the Ninth Circuit to file a second or successive petition; (2) to allow Petitioner to withdraw his petition with leave to amend and/or refile his petition once he has obtained authorization from the Ninth Circuit to file a second or successive petition; or (3) to apply the holding of Hill v. Alaska , 297 F.3d 895, 897 (9th Cir. 2002), and find that his petition is not second or successive. (Opp'n at 1.) In the alternative, Petitioner requests that in the event the Court decides it has jurisdiction to hear the merits of his instant ...