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Thomas v. Pennywell-Alfaro

United States District Court, C.D. California

February 12, 2015

CURTIS D. THOMAS, Petitioner,
v.
SANDRA PENNYWELL-ALFARO, Respondent.

ORDER RE SUMMARY DISMISSAL OF ACTION

BEVERLY REID O'CONNELL, District Judge.

I.

PROCEDURAL HISTORY

On January 9, 2015, Petitioner Curtis D. Thomas ("Petitioner"), proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") in this Court, pursuant to 28 U.S.C. § 2254. In the Petition, Petitioner challenges the sentence imposed for two convictions in Riverside County Superior Court on July 7, 2002, for the following offenses: (1) one count of attempted robbery, in violation of California Penal Code sections 664 and 212.5; and (2) one count of petty theft with a prior conviction, in violation of California Penal Code section 666. Pet. at 2.[1] Petitioner raises two claims: (1) breach of an executed plea agreement, in violation of his due process rights; and (2) ineffective assistance of appellate counsel, in violation of his due process rights. Id. at 11.

Petitioner previously challenged his 2002 conviction and sentence in a prior unsuccessful federal habeas petition filed in this Court on April 20, 2006, in Curtis Douglas Thomas v. L.E. Schribner, Case No. CV 06-00419-AHM-RCF. Hence, on January 14, 2015, the Court issued an Order to Show Cause Why The Petition Should Not be Dismissed as Second or Successive ("OSC"). (Dkt. 4). Petitioner has failed to submit a timely response to the Court's OSC. The matter thus stands submitted and ready for decision.

II.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to the instant Petition because Petitioner filed it after AEDPA's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). AEDPA provides that a claim presented in a "second or successive" federal habeas petition that was not presented in a prior petition shall be dismissed unless:

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. §§ 2244(b)(2)(A), (B). A second or subsequent habeas petition is not considered "successive" if the initial habeas petition was dismissed for a technical or procedural reason, rather than on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-87, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

"Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A). Such permission will be granted only if "the application makes a prima facie showing that the application satisfies the requirements of [Section 2244(b)]." See id. Furthermore, Ninth Circuit Rule 22-3(a) provides that "[i]f a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals."

Here, the instant Petition is "second or successive" because it challenges the same 2002 state court judgment that Petitioner challenged in a prior unsuccessful federal habeas petition filed in this Court on April 20, 2006, in Curtis Douglas Thomas v. L.E. Schribner, Case No. CV 06-00419-AHM-RCF. See Burton v. Stewart, 549 U.S. 147, 153, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (holding that a petition was successive because it challenged "the same custody imposed by the same judgment of a state court" as a prior petition). Petitioner's 2006 petition was denied on its merits and does not appear to have raised either of the claims presented in the instant Petition. Consequently, the instant Petition is "second or successive" for purposes of 28 U.S.C. § 2244(b). See Slack, 529 U.S. at 485-87.

Thus, for the Court to consider the Petition, Petitioner must have obtained leave to file the Petition from the U.S. Court of Appeals for the Ninth Circuit. See 28 U.S.C. § 2244(b)(3)(A); Burton, 549 U.S. at 153 (AEDPA requires petitioner to receive authorization from the Court of Appeals before filing a second habeas petition). There is no indication Petitioner has obtained such leave from the Ninth Circuit. The Court is therefore without jurisdiction to entertain the instant Petition under 28 U.S.C. § 2244(b).

IT THEREFORE IS ORDERED that this action be summarily dismissed without prejudice, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. The Clerk of the Court is directed to refer the Petition to the Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a).

IT IS FURTHER ORDERED THAT JUDGMENT BE ENTERED ACCORDINGLY.


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