Larson v. Cates
- Proceeding
- original
- Outcome
- other — In that petition, Petitioner also challenged his conviction in On February 25, 2011, this Court 28 granted a motion to dismiss the petit
- Area
- civil
- Panel
- Todd W. Robinson (author)
Analysis
The court considered a pro se state prisoner's federal habeas corpus petition challenging a San Diego County conviction. The court dismissed the petition without prejudice as a successive petition lacking authorization from the Ninth Circuit and denied a certificate of appealability.
| What the court decided | The model |
|---|---|
Dismissal of the Petition for Writ of Habeas Corpus without prejudice“Because the Court cannot consider Petitioner’s Petition, 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 order correctly identifies that the current petition is successive to at least three prior federal habeas petitions challenging the same conviction. Under 28 U.S.C. § 2244(b)(3)(A), a district court lacks jurisdiction to consider a successive petition unless the petitioner has obtained authorization from the court of appeals. The order notes there is no indication such authorization was granted. Therefore, dismissal without prejudice is the legally required outcome to preserve the petitioner's right to seek appellate authorization. |
Denial of a Certificate of Appealability (COA)“the Court DENIES a certificate of appealability.” | agree with court The court applied the standard from 28 U.S.C. § 2253(c) and Rule 11(a) of the Rules Governing § 2254 Cases. It found that the petitioner failed to make a substantial showing of the denial of a constitutional right and that reasonable jurists would not find the court's assessment debatable. Given that the dismissal was based on a clear statutory jurisdictional bar (lack of appellate authorization for a successive petition), the denial of a COA is appropriate as the legal issue is not debatable among reasonable jurists. |
The order itself: sound — The order correctly applies the statutory framework for successive habeas petitions. It accurately identifies the prior petitions, establishes that the current petition is successive, and notes the lack of required appellate authorization. The dismissal without prejudice is the standard procedural remedy in this context. The denial of a COA is supported by the clear legal basis for the dismissal.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 HARVEY E. LARSON, Case No. 21-CV-1628 TWR (DEB)
12 Plaintiff, SUMMARY DISMISSAL OF 13 v. SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. 14 B. CATES, Acting Warden, § 2244(b)(3)(A) 15 Defendant. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas 18 Corpus pursuant to 28 U.S.C. § 2254, challenging his conviction in San Diego Superior 19 Court Case number SCE95230. (ECF No. 1 (“Pet.”) at 1.) For the reasons discussed 20 below, the Court summarily DISMISSES WITHOUT PREJUDICE this case pursuant 21 to 28 U.S.C. § 2244(b)(3)(A). 22 The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner 23 has submitted to this Court challenging his conviction in San Diego County Superior Court 24 case number SCE195230. On July 7, 2009, Petitioner filed in this Court a First Amended 25 Petition for Writ of Habeas Corpus in Larson v. Carrasco, No. 09-CV-745 L (PCL) (S.D. 26 Cal. transferred Apr. 9, 2009). In that petition, Petitioner also challenged his conviction in 27 San Diego Superior Court case number SCE195230. On February 25, 2011, this Court 28 granted a motion to dismiss the petition as time barred. See Order, Larson v. Carrasco, 1 No. 09-CV-745 L (PCL) (S.D. Cal. filed Feb. 25, 2011), ECF No. 51. Petitioner appealed 2 that determination, and on August 23, 2012, the Ninth Circuit Court of Appeals denied a 3 Certificate of Appealability. See Order, Larson v. Attorney General, No. 11-55606 (9th 4 Cir. Aug. 23, 2012). Petitioner again challenged his conviction in San Diego County 5 Superior Court case number SCE195230 in this Court in Larson v. Alison, No. 14-CV- 6 2083 JAH (JMA) (S.D. Cal. filed Sept. 3, 2014). That case was dismissed as successive 7 on September 10, 2014. See Order, Larson v. Alison, No. 14-CV-2083 JAH (JMA) (S.D. 8 Cal. Sept. 10, 2014), ECF No. 3. On April 28, 2016, Petitioner again attempted to challenge 9 the same conviction, and the petition was again dismissed as successive. See Order, Larson 10 v. Sherman, No. 16-CV-1038 GPC (MDD) (S.D. Cal. May 11, 2016), ECF No. 3. 11 Through this Petition, Petitioner once again seeks to challenge the sentence imposed 12 as a result the same conviction challenged in his prior federal habeas petitions. Unless a 13 petitioner shows he has obtained an Order from the appropriate court of appeals authorizing 14 the district court to consider a successive petition, the petition may not be filed in the 15 district court. See 28 U.S.C. § 2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 16 153 (2007) (a petition is successive where it challenges “the same custody imposed by the 17 same judgment of a state court” as a prior petition). A successive application is permissible 18 “only if it rests on a new rule of constitutional law, facts that were previously unavailable 19 or facts that would be sufficient to show constitutional error in the petitioner’s conviction.” 20 28 U.S.C. § 2244(b)(2). “Even if a petitioner can demonstrate that he qualifies for one of 21 these exceptions, he must seek authorization from the court of appeals before filing his new 22 petition with the district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). 23 Here, there is no indication the Ninth Circuit Court of Appeals has granted Petitioner 24 leave to file a successive petition. Because the Court cannot consider Petitioner’s Petition, 25 the Court DISMISSES this action without prejudice to Petitioner filing a petition in this 26 Court if he obtains the necessary order from the Ninth Circuit Court of Appeals. Further, 27 because 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, the Court DENIES a certificate of appealability. See 28 U.S.C. 2 || § 2253(c); see also 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 5 || blank Ninth Circuit Application for Leave to File Second or Successive Petition. 6 IT IS SO ORDERED. 7 Dated: September 16, 2021 | Odd (2 re Honorable Todd W. Robinson 10 United States District Court 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28