United States District Court, E.D. California
ORDER DISMISSING PETITION AS SECOND OR
K. OBERTO. UNITED STATES MAGISTRATE JUDGE
Larry Banks is a state prisoner proceeding pro se
with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254. The petition alleges three claims of
ineffective assistance of counsel arising from
Petitioner's 2009 murder trial. Because Petitioner has
filed a previous habeas petition concerning the same
conviction, the Court is required to dismiss the petition as
secondary or successive.
Procedural and Factual Background
Fresno County Superior Court in 2009, a jury convicted
Petitioner of first degree murder and use of a knife during
the commission of a murder. See Banks v. Gipson
(E.D. Cal. Oct. 30, 2013) (No. 1:11-cv-02067-LJO-MJS HC),
affirmed, 637 Fed.Appx. 379 (9th Cir.
Feb. 22, 2016) (No. 13-17371). See also People v.
Banks, 2011 WL 913459 (Cal.App. Mar. 17, 2011) (No.
F058831). The state court sentenced Petitioner to an
indeterminate term of life in prison. Banks v.
Gipson (E.D. Cal. Oct. 30, 2013) (No.
1:11-cv-02067-LJO-MJS HC), affirmed, 637 Fed.Appx.
379 (9th Cir. Feb. 22, 2016) (No. 13-17371).
Following a direct appeal in California state courts,
Petitioner filed a federal petition for writ of habeas corpus
on December 15, 2011. Id. This Court denied the
petition, and the U.S. Court of Appeals for the Ninth Circuit
of the Rules Governing § 2254 Cases requires the Court
to conduct a preliminary review of each petition for writ of
habeas corpus. The Court must dismiss a petition "[i]f
it plainly appears from the petition . . . that the
petitioner is not entitled to relief." Rule 4 of the
Rules Governing 2254 Cases; see also Hendricks v.
Vasquez, 908 F.2d 490, 491 (9th Cir. 1990). A
petition for habeas corpus should not be dismissed without
leave to amend unless it appears that no tenable claim for
relief can be pleaded were such leave to be granted.
Jarvis v. Nelson, 440 F.2d 13, 14 (9th
No District Court Jurisdiction Over a Second or
circuit court of appeals, not the district court, must decide
whether a second or successive petition satisfies the
statutory requirements to proceed. 28 U.S.C. §
2244(b)(3)(A) ("Before a second or successive petition
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"). This means that a petitioner may not file
a second or successive petition in district court until he
has obtained leave from the court of appeals. Felker v.
Turpin, 518 U.S. 651, 656-57 (1996). In the absence of
an order from the appropriate circuit court, a district court
lacks jurisdiction over the petition and must dismiss the
second or successive petition. Greenawalt v.
Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997).
has not secured leave from the Ninth Circuit Court of Appeals
to file the above-captioned petition. Accordingly, the Court
must dismiss it for lack of jurisdiction.
Certificate of Appealability
petitioner seeking a writ of habeas corpus has no absolute
entitlement to appeal a district court's denial of his
petition, but may only appeal in certain circumstances.
Miller-El v.Cockrell, 537 U.S. 322, 335-36 (2003).
The controlling statute in determining whether to issue a
certificate of appealability is 28 U.S.C. § 2253, which
(a) In a habeas corpus proceeding or a proceeding under
section 2255 before a district judge, the final order shall
be subject to review, on appeal, by the court of appeals for
the circuit in which the proceeding is held.
(b) There shall be no right of appeal from a final order in a
proceeding to test the validity of a warrant to remove to
another district or place for commitment or trial a person
charged with a criminal offense against the United States, or
to test the ...