(HC) Barkacs v. Goodwin
- Proceeding
- district
- Area
- civil
- Panel
- Robert Steven Huie (author)
Analysis
The court reviewed a pro se state prisoner's second habeas corpus petition challenging a 2005 conviction, which had previously been denied on the merits in 2009. The court dismissed the petition without prejudice because the petitioner failed to obtain the required authorization from the Ninth Circuit Court of Appeals to file a successive petition, and denied the motion to appoint counsel as moot.
| What the court decided | The model |
|---|---|
Dismissal of the Petition for a Writ of Habeas Corpus“It is therefore ORDERED that this action be DISMISSED without prejudice to Petitioner filing another petition if he obtains the necessary order from the Court of Appeals.” | agree with court The dismissal is legally correct. Under 28 U.S.C. § 2244(b)(3)(A), a prisoner must obtain authorization from the court of appeals before filing a second or successive habeas petition in district court. The order recites that the petitioner previously filed a petition challenging the same custody, which was denied on the merits, and that the petitioner did not move for or obtain the necessary appellate authorization. Therefore, the district court lacked jurisdiction to consider the merits of the new petition. |
Denial of Certificate of Appealability“A certificate of appealability is DENIED.” | agree with court The court correctly applied the standard from 28 U.S.C. § 2253(c)(2) and *Slack v. McDaniel*, requiring a substantial showing of the denial of a constitutional right. Since the dismissal was based on a procedural jurisdictional bar (failure to obtain authorization) rather than a substantive constitutional ruling, reasonable jurists would not find the assessment of the constitutional claims debatable or wrong. The denial is consistent with the law. |
Denial of Motion to Appoint Counsel“his motion to appoint counsel, ECF No. 6, is DENIED as moot.” | agree with court Because the petition was dismissed without prejudice due to a threshold procedural failure, there is no pending case in which counsel could be appointed. Denying the motion as moot is the standard procedural response when the underlying action is dismissed at the threshold. |
The order itself: sound — The order correctly identifies the petition as successive based on the prior litigation history. It correctly applies the jurisdictional requirement of 28 U.S.C. § 2244(b)(3)(A) and the Ninth Circuit precedent in *Rishor v. Ferguson* to dismiss the petition for lack of authorization. The denial of the certificate of appealability is supported by the *Slack* standard, as the dismissal was procedural. The reasoning is complete and cites the necessary authorities.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JAMES BARKACS, Case No.: 3:22-cv-01246-RSH-BLM 12 Petitioner, ORDER DISMISSING SUCCESSIVE 13 v. PETITION AND DENYING AS MOOT MOTION TO APPOINT 14 GOODWIN, Warden, COUNSEL 15 Respondent. [ECF No. 6] 16 17 18 On August 9, 2022, Petitioner, a state prisoner proceeding pro se, filed a Petition for 19 a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, challenging his April 6, 2005 20 conviction in San Diego County Superior Court, case number SCE234361 (“Petition”). 21 ECF No. 1. The Petition was originally filed in the United States District Court for the 22 Eastern District of California and subsequently transferred to this Court on August 23, 23 2022. ECF No. 4. Petitioner also filed a motion to appoint counsel. ECF No. 6. 24 Nearly fifteen years ago, Petitioner filed a habeas petition challenging the same 25 conviction. See Barkacs v. Adams, No. 3:07-cv-02139-JAH-WMC (S.D. Cal. Nov. 7, 26 2007), at ECF No. 1. On May 21, 2009, this Court denied Petitioner’s first petition on the 27 merits. Id. at ECF No. 23. On June 17, 2009, Petitioner appealed that decision. Id. at ECF 28 No. 25. On July 19, 2011, the Ninth Circuit denied a certificate of appealability. Id. at ECF 1 No. 29; see also Burton v. Stewart, 549 U.S. 147, 153 (2007) (finding petition was 2 successive when it challenged “the same custody imposed by the same judgment of a state 3 court” as a prior petition). 4 The Court must dismiss the Petition because Petitioner has not moved for an order 5 from the Ninth Circuit authorizing this Court to consider his successive habeas application. 6 See 28 U.S.C. § 2244(b)(3)(A) (“Before a second or successive application permitted by 7 this section is filed in the district court, the applicant shall move in the appropriate court of 8 appeals for an order authorizing the district court to consider the application.”); Rishor v. 9 Ferguson, 822 F.3d 482, 490 (9th Cir. 2016) (failure to obtain appellate court authorization 10 for filing a successive petition acts as a jurisdictional bar). 11 Under Rule 11 of the Rules Governing 28 U.S.C. § 2254, the Court “must issue or 12 deny a certificate of appealability when it enters a final order adverse to the applicant.” A 13 certificate of appealability “may issue . . . only if the applicant has made a substantial 14 showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see also Pham v. 15 Terhune, 400 F.3d 740, 742 (9th Cir. 2005). A “substantial showing” requires a 16 demonstration that “reasonable jurists would find the district court’s assessment of the 17 constitutional claims debatable or wrong.” Beaty v. Stewart, 303 F.3d 975, 984 (9th Cir. 18 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Petitioner cannot carry his 19 burden to show that the Court’s dismissal of his successive petition constitutes a denial of 20 a constitutional right. 21 It is therefore ORDERED that this action be DISMISSED without prejudice to 22 Petitioner filing another petition if he obtains the necessary order from the Court of 23 Appeals. The Clerk of Court is directed to send Petitioner a blank Application for Leave to 24 File a Second or Successive Petition under 28 U.S.C. § 2254 together with a copy of this 25 Order. A certificate of appealability is DENIED. Because the Court is dismissing the 26 Petition due to Petitioner’s failure to make a threshold showing that he obtain a Ninth 27 // 28 // 1 || Circuit Order authorizing his successive habeas application, his motion to appoint counsel, 2 ||ECF No. 6, is DENIED as moot. 3 IT IS SO ORDERED. febut c Lona 4 || DATED: September 27, 2022 5 Hon. Robert S. Huie United States District Judge 6 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28