Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BRANDON LEON BIBBS, Case No.: 3:26-cv-1158-CAB-AHG 12 Petitioner, ORDER: 13 v. (1) GRANTING MOTION FOR RECONSIDERATION [Doc. No. 6]; 14 C.D.C.R., AND 15 Respondent. (2) DISMISSING PETITION WITH 16 PREJUDICE AS SUCCESSIVE 17 18 On February 13, 2026, Petitioner Brandon Lee Bibbs, an inmate then incarcerated at 19 Centinela State Prison and proceeding pro se, filed a petition for a writ of habeas corpus 20 pursuant to 28 U.S.C. § 2254. [Doc. No. 1.] The Court dismissed the action without 21 prejudice because Petitioner failed to satisfy the filing fee requirement. [Doc. No. 2.] 22 Petitioner paid the filing fee on April 7, 2026 and the case was reopened. [Doc. Nos. 4, 5.] 23 On June 3, 2026, however, Petitioner filed a notice of change of address indicating that he 24 had been released from state prison. [Doc. No. 4.] The Court thereafter dismissed the 25 Petition as moot because it appeared Petitioner was no longer in custody. [See Doc. No. 5 26 at 1–2 (citing Munoz v. Rowland, 104 F.3d 1096, 1097–98 (9th Cir. 1997) (“Because [the 27 petitioner] has been released . . ., we can no longer provide him the primary relief sought 28 1 in his habeas corpus petition.”)).] 2 On July 9, 2026, Petitioner filed a Motion for Reconsideration pursuant to Federal 3 Rule of Civil Procedure 60(b). [Doc. No. 6.] Petitioner seeks reconsideration of the 4 dismissal of the Petition as moot because, while he has been released from prison, he is 5 currently on parole and as such, still “in custody” for purposes of habeas relief. [Id. at 1– 6 2.] 7 I. MOTION FOR RECONSIDERATION 8 Federal Rule of Civil Procedure 60(b) entitles the moving party to relief from 9 judgment based on: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly 10 discovered evidence that, with reasonable diligence, could not have been discovered in 11 time to move for a new trial under Rule 59(b); (3) fraud (whether previously called intrinsic 12 or extrinsic), misrepresentation, or misconduct by an opposing party; (4) the judgment is 13 void; (5) the judgment has been satisfied, released or discharged; it is based on an earlier 14 judgment that has been reversed or vacated; or applying it prospectively is no longer 15 equitable; or (6) any other reason that justifies relief. Fed. R. Civ. P. 60(b). Here, Petitioner 16 is correct that a habeas petitioner who is on parole is in “constructive custody” for habeas 17 purposes. The Supreme Court held that a paroled convict is “in custody” for purposes of a 18 habeas petition. Jones v. Cunningham, 371 U.S. 236, 243 (1963). Therefore, because 19 Petitioner has informed the Court he is now in constructive custody, the Court GRANTS 20 his request for reconsideration of the dismissal of his petition as moot. See Fed. R. Civ. P. 21 60(b)(6). 22 II. SUCCESSIVE PETITION 23 The Court, however, must dismiss the Petition as successive because Petitioner is 24 seeking to challenge his sentence arising from the same conviction and sentence he 25 challenged in at least one prior federal habeas petition. 1 Petitioner sought federal habeas 26 27 1 Petitioner has additionally filed several other habeas petitions pursuant to 28 U.S.C. § 2254. See, e.g., 28 Bibbs v. United States, No. 20-cv-4222-JVS-kk (C.D. Cal. May 2020); Brandon Leon Bibbs v. Alex 1 relief pursuant to 28 U.S.C. § 2254 from his conviction in Los Angeles County Superior 2 Court Case No. VA134204 in the United States District Court for the Central District of 3 California and the petition was denied on the merits on February 7, 2023. See Bibbs v. 4 Andre, No. 22-cv-4330-JBS-JPR (C.D. Cal. Feb. 7, 2023). Petitioner appealed to the 5 United States Court of Appeals for the Ninth Circuit, but the court declined to issue a 6 certificate of appealability. See Bibbs v. Andrew, No. 23-55295 (9th Cir. May 10, 2024). 7 Thus, unless Petitioner shows he has obtained an Order from the appropriate court of 8 appeals authorizing the district court to consider a successive petition, the petition may not 9 be filed in district court. See 28 U.S.C. § 2244(b)(3)(A); see also Burton v. Stewart, 549 10 U.S. 147, 153 (2007) (a petition is successive where it challenges “the same custody 11 imposed by the same judgment of a state court” as a prior petition). Here, there is no 12 indication the Ninth Circuit Court of Appeals has granted Petitioner leave to file a 13 successive petition. See 28 U.S.C. § 2244(b); see also Bibbs v. Madden, No. 24-7054 (9th 14 Cir. Dec. 19, 2024) (denying Bibbs’s application to file second or successive § 2254 habeas 15 petition). As such, the Court DISMISSES the Petition as successive. 16 III. CONCLUSION 17 For the reasons discussed above, the Court GRANTS Petitioner’s Motion for 18 Reconsideration pursuant to Federal Rule of Civil Procedure 60(b), [Doc. No. 6], but 19 DISMISSES the Petition as successive. Because there is no indication Petitioner has 20 obtained permission from the Ninth Circuit Court of Appeals to file a successive petition, 21 this Court cannot consider his Petition. 22 Further, when a district court dismisses a petition on procedural grounds, it must 23 issue a Certificate of Appealability if the petitioner shows “that jurists of reason would find 24 it debatable whether the petition states a valid claim of the denial of a constitutional right, 25 and that jurists of reason would find it debatable whether the district court was correct in 26 27 28 Dept., No. 20-cv-2308-JVS-kk (C.D. Cal. Mar. 2021); Brandon Bibbs v. Los Angeles Sheriff Dept., No. 1 || its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478 (2000). Here, the Court finds 2 ||Petitioner cannot make the requisite showing that jurists of reason would find this 3 || procedural ruling debatable. As such, a certificate of appealability is DENIED. See Rules 4 ||Governing § 2254 Cases, Rule 11(a) (requiring the district court that issues an order 5 || denying a habeas petition to either grant or deny a certificate of appealability). 6 Itis SO ORDERED. 7 ||Dated: August 10, 2026 (GB 8 Hon. Cathy Ann Bencivengo United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28