United States District Court, S.D. California
August 26, 2014
LEE V. QUILLAR, Petitioner,
THE STATE OF CALIFORNIA, Respondent.
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
BARRY TED MOSKOWITZ, Chief District Judge.
On May 30, 2001, Petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court challenging his conviction in San Diego Superior Court case no. SCE171373. ( See So. Dist. Cal. Case No. 01cv0968 BTM.) On May 29, 2003, federal habeas corpus relief was denied on the merits; the denial was affirmed by the Ninth Circuit Court on February 7, 2005. ( See id. at doc. nos. 60, 79.)
Petitioner filed a motion for relief from judgment in case no. 01cv0968 BTM on October 12, 2010, which this Court treated as a second or successive petition under 28 U.S.C. § 2244(b). The Court dismissed the matter due to Petitioner's failure to obtain permission from the Ninth Circuit to file a second or successive petition. ( Id. at doc. nos. 83, 85.) The Ninth Circuit denied a certificate of appealability and dismissed the appeal on April 27, 2013. ( Id. at doc. no. 93.)
Petitioner then filed three additional motions which the Court also construed as an attempt to file a second or successive petition; the Court dismissed them pursuant to 28 U.S.C. § 2244(b) as well. ( Id. at doc. nos. 95, 97. 100.)
On July 28, 2014, Petitioner Lee Quillar attempted to file a document in case number 01cv0968 BTM entitled "Motion to Amend Judgment Pursuant to FRCP 59(e)." ( See id. at 101.) The Court construed the document as a new petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and had the matter filed as a new petition in this case.
In this Petition, Petitioner is seeking to challenge the same conviction he challenged in his prior federal habeas petition. Unless a petitioner shows he or she has obtained an Order from the appropriate court of appeals authorizing the district court to consider a successive petition, the petition may not be filed in the district court. See 28 U.S.C. § 2244(b)(3)(A).
Petitioner's most recent filing contends that he is exempt from seeking leave from the Ninth Circuit to challenge his state court conviction a second time under the standard articulated by the Supreme Court in Martinez v. Ryan, 132 S.Ct. 1309 (2012). In Martinez, the Court held as follows:
Where, under state law, claims of ineffective assistance of trial counsel must be raised in an initial-review collateral proceeding, a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.
Id. at 1320.
Petitioner contends that this Court must reconsider his habeas petition in light of Martinez because he alleges he received ineffective assistance of counsel at trial. Petitioner is mistaken. Martinez addressed habeas claims which are barred by procedural default. Id. It does not affect § 2254 petitions, such as Petitioner's, which seek to challenge a conviction which was already challenged on federal habeas review and denied on the merits. To bring a subsequent or successive claim for habeas relief in this Court, he must obtain leave from the Ninth Circuit Court of Appeals. Id. at §2244(b)(3)(A).
Because there is no indication Petitioner has obtained permission from the Ninth Circuit Court of Appeals to file a successive petition, this Court cannot consider his Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner filing a petition in this court if he obtains the necessary order from the Ninth Circuit Court of Appeals.
IT IS SO ORDERED.