Foster v. Sullivan

District Court, S.D. California · 3:20-cv-00408 · 2020-03-04 · Unknown

Proceeding: original
Outcome: other — 39).) Petitioner appeal
Area: civil
Panel: Larry Alan Burns (author)

Analysis

A model's reading — qwen3.8-27b, prompt own-v1, 2026-10-13T23:51Z · confidence high

The court considered a federal habeas corpus petition challenging a state conviction and sentence. The court dismissed the petition without prejudice under the gatekeeper provision of 28 U.S.C. § 2244(b)(3)(A) because the petitioner failed to obtain authorization from the Ninth Circuit to file a successive petition, and denied a certificate of appealability.

What the court decided	The model
Dismissal of the habeas petition without prejudice “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.”	agree with court The court correctly applied the gatekeeper provision of 28 U.S.C. § 2244(b)(3)(A). The record establishes that the petitioner previously filed a habeas petition challenging the same conviction (Case No. 3:11-cv-2270-LAB-WMC), which was dismissed as time-barred. Under Ninth Circuit precedent (McNabb v. Yates), a petition dismissed for failure to comply with the statute of limitations renders subsequent petitions challenging the same conviction or sentence 'second or successive.' Because the petitioner did not obtain authorization from the court of appeals to file a successive petition, the district court lacked jurisdiction to consider the merits. Dismissal without prejudice is the appropriate remedy to allow the petitioner to seek authorization from the Ninth Circuit.
Denial of certificate of appealability “As such, a certificate of appealability is DENIED.”	agree with court The court applied the standard from 28 U.S.C. § 2253(c), requiring a 'substantial showing of the denial of a constitutional right.' Since the dismissal was based on a procedural bar (failure to obtain gatekeeper authorization) rather than a substantive constitutional violation, and the legal basis for the dismissal is well-settled, reasonable jurists would not find the assessment debatable. The denial is consistent with the law.

What the court decided

The model

Dismissal of the habeas petition without prejudice

“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.”

agree with court
The court correctly applied the gatekeeper provision of 28 U.S.C. § 2244(b)(3)(A). The record establishes that the petitioner previously filed a habeas petition challenging the same conviction (Case No. 3:11-cv-2270-LAB-WMC), which was dismissed as time-barred. Under Ninth Circuit precedent (McNabb v. Yates), a petition dismissed for failure to comply with the statute of limitations renders subsequent petitions challenging the same conviction or sentence 'second or successive.' Because the petitioner did not obtain authorization from the court of appeals to file a successive petition, the district court lacked jurisdiction to consider the merits. Dismissal without prejudice is the appropriate remedy to allow the petitioner to seek authorization from the Ninth Circuit.

Denial of certificate of appealability

“As such, a certificate of appealability is DENIED.”

agree with court
The court applied the standard from 28 U.S.C. § 2253(c), requiring a 'substantial showing of the denial of a constitutional right.' Since the dismissal was based on a procedural bar (failure to obtain gatekeeper authorization) rather than a substantive constitutional violation, and the legal basis for the dismissal is well-settled, reasonable jurists would not find the assessment debatable. The denial is consistent with the law.

The order itself: sound — The order is procedurally and substantively sound. It correctly identifies the prior petition, establishes that the current petition is successive under controlling Ninth Circuit precedent (McNabb v. Yates), and applies the statutory gatekeeper requirement (28 U.S.C. § 2244(b)(3)(A)). The dismissal without prejudice is the correct procedural mechanism to preserve the petitioner's right to seek authorization from the Ninth Circuit. The denial of the COA is also supported by the procedural nature of the dismissal.

How this analysis was made · dispute it

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DERRYL TYRONE FOSTER, Case No. 3:20-cv-0408-LAB-WVG 12 Plaintiff, SUMMARY DISMISSAL OF 13 v. SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. 14 W.J. SULLIVAN, Warden, § 2244(b)(3)(A) GATEKEEPER 15 Defendant. PROVISION 16 17 Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 18 § 2254. For the reasons discussed below, this case is summarily dismissed pursuant to 28 19 U.S.C. § 2244(b)(3)(A). 20 PETITION BARRED BY GATEKEEPER PROVISION 21 The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner 22 has submitted to this Court challenging his August 31, 2006 conviction in San Diego 23 County Superior Court Case No. SCD195407. On September 28, 2011, Petitioner filed 24 in a Court a Petition for Writ of Habeas Corpus in case number 3:11-cv-2270-LAB- 25 WMC. In that petition, Petitioner challenged his August 31, 2006 conviction as well. On 26 August 26, 2013, this Court dismissed the petition because it had been filed after the 27 expiration of the one-year statute of limitations. (See Order filed Aug. 26, 2013 in case 28 No. 3:11-cv-2270-LAB-WMC (ECF No. 39).) Petitioner appealed that determination. 1 On November 20, 2013, the Ninth Circuit Court of Appeals denied Petitioner’s request 2 for certificate of appealability. See Foster v. Cate, No. 13-56776 (9th Cir. Nov. 20, 3 2013). 4 Petitioner is now seeking to challenge the sentence imposed as a result the 5 conviction he challenged in his prior federal habeas petition. Unless a petitioner shows 6 he has obtained an Order from the appropriate court of appeals authorizing the district 7 court to consider a successive petition, the petition may not be filed in the district court. 8 See 28 U.S.C. § 2244(b); Burton v. Stewart, 549 U.S. 147, 153 (2007) (holding a petition 9 is successive where it challenges “the same custody imposed by the same judgment of a 10 state court” as a prior petition); see also McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 11 2009) (concluding dismissal for failure to comply with one-year statute of limitations 12 renders subsequent petitions challenging the same conviction or sentence “second or 13 successive”). A successive application is permissible “only if it rests on a new rule of 14 constitutional law, facts that were previously unavailable, or facts that would be sufficient 15 to show constitutional error in the petitioner's conviction.” 28 U.S.C. § 2244(b)(2). 16 “Even if a petitioner can demonstrate that he qualifies for one of these exceptions, he 17 must seek authorization from the court of appeals before filing his new petition with the 18 district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir.2008). Here, there is no 19 indication the Ninth Circuit Court of Appeals has granted Petitioner leave to file a 20 successive petition. 21 CONCLUSION 22 Because there is no indication Petitioner has obtained permission from the Ninth 23 Circuit Court of Appeals to file a successive petition, this Court cannot consider his 24 Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner 25 filing a petition in this court if he obtains the necessary order from the Ninth Circuit 26 Court of Appeals. 27 Further, Petitioner has failed to make “a substantial showing of the denial of a 28 constitutional right,” and reasonable jurists would not find debatable this Court’s 1 || assessment of his claims. See 28 U.S.C. § 2253(c). As such, a certificate of appealability 2 ||is DENIED. See Rules Governing § 2254 Cases, Rule 11(a) (requiring the district court 3 || that issues an order denying a habeas petition to either grant or deny a certificate of 4 ||appealability). For Petitioner’s convenience, the Clerk of Court shall attach a blank 5 || Ninth Circuit Application for Leave to File Second or Successive Petition. 6 IT IS SO ORDERED. 7 || DATED: March 4, 2020 lauy A Gul Larry Alan Burns Chief United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28