Lawrie v. Cavello
- Proceeding
- original
- Outcome
- writ denied — petition is dismissed 23 and the accompanying motions denied as moot.
- Area
- civil
- Panel
- Jinsook Ohta (author)
Analysis
The court reviewed a habeas corpus petition filed by a state prisoner challenging a conviction that had previously been challenged in a prior federal habeas petition which was denied on the merits. The court dismissed the current petition as a successive application lacking the required appellate authorization and denied the accompanying motions as moot.
| What the court decided | The model |
|---|---|
Dismissal of the habeas petition as a successive petition“Accordingly, the Court DISMISSES this action without prejudice to Petitioner refiling after he obtains the necessary authorization from the Ninth Circuit Court of Appeals.” | agree with court The court correctly applied the gatekeeping provision of 28 U.S.C. § 2244(b)(3)(A). The record establishes that the petitioner previously filed a habeas petition challenging the same judgment of conviction, which was denied on the merits by the district court. Under Burton v. Stewart, such a petition is 'successive' and requires authorization from the Ninth Circuit before filing in district court. Since no such authorization was obtained, the district court lacked jurisdiction to consider the merits. |
Denial of motion to proceed in forma pauperis and motion for appointment of counsel“The motion to proceed IFP (ECF No. 2) and motion for appointment of counsel (ECF No. 3) are DENIED as moot.” | agree with court Because the underlying petition was dismissed for lack of jurisdiction, the ancillary motions regarding fees and counsel became moot. This is a standard procedural consequence of dismissing the main action. |
Denial of certificate of appealability“Further, the Court finds no certificate of appealability is warranted because Petitioner has not shown “jurists of reason” could debate or differ on whether the instant Petition is successive.” | agree with court The court applied the standard from Slack v. McDaniel for issuing a certificate of appealability. Given the clear statutory requirement for appellate authorization for successive petitions and the undisputed fact that the prior petition was denied on the merits, it is not debatable that the current petition is successive and thus barred without authorization. Therefore, no COA is warranted. |
The order itself: sound — The order is procedurally correct and relies on the appropriate Supreme Court precedents (Burton and Slack) to establish the jurisdictional bar for successive habeas petitions. The factual findings regarding the prior petition are supported by the court's records. The reasoning is concise and directly addresses the statutory gatekeeping requirement.
Opinion
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No. 3:23-cv-1859-JO-MSB MATTHEW A. LAWRIE, 12 SUMMARY DISMISSAL OF Petitioner, 13 SUCCESSIVE PETITION v. PURSUANT TO 28 U.S.C. 14 § 2244(b)(3)(A) GATEKEEPER 15 PROVISION PARTICK COVELLO, Warden, 16 Respondent. 17 18 19 20 Petitioner filed a Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, 21 along with a motion to proceed in forma pauperis (IFP), and a motion for appointment of 22 counsel. ECF Nos. 1–3. For the reasons set forth below, the habeas petition is dismissed 23 and the accompanying motions denied as moot. 24 Pursuant to 28 U.S.C. § 2244(b)(3)(A), habeas petitioners cannot bring a “second or 25 successive application for the same relief they already requested without proper 26 authorization. A federal habeas petition is “second” or “successive” if (1) the petitioner 27 filed a previous challenge to a state judgment; (2) a federal court issued a decision on the 28 merits regarding that challenge; and (3) the current petition makes “claims contesting the 1 same custody imposed by the same judgment of a state court.” Burton v. Stewart, 549 U.S. 2 147, 153 (2007); see also Slack v. McDaniel, 529 U.S. 473, 485–86 (2000). Before filing 3 such a petition in a district court, the petitioner must obtain from the appellate court “an 4 order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). 5 Without this authorization from the appellate court, the district court is without jurisdiction 6 to consider a second or successive petition. See Burton, 549 U.S. at 157. 7 Here, Petitioner seeks relief from the same conviction that he previously challenged 8 before this Court twelve years ago. His instant habeas petition raises arguments 9 concerning his conviction in San Diego County Superior Court Case No. SCN160404. 10 ECF No. 1 at 1. Court records reflect Petitioner filed a previous habeas petition in 2010 11 challenging this same judgment of conviction in this court. See Lawrie v. Cate, No. 10-cv- 12 1034-DMS-PCL (S.D. Cal.). The district court denied the earlier petition on the merits on 13 October 5, 2011. See id., ECF No. 19. On October 22, 2012, the United States Court of 14 Appeals for the Ninth Circuit denied a certificate of appealability. See id., ECF No. 21. 15 Because Petitioner’s previous petition challenging the same conviction received a ruling 16 on the merits from the district court, the instant Petition is successive.1 Because there is 17 no indication Petitioner has obtained permission from the Ninth Circuit Court of Appeals 18 to file a successive petition, this Court lacks jurisdiction to consider the Petition and must 19 dismiss it. 20 CONCLUSION 21 Accordingly, the Court DISMISSES this action without prejudice to Petitioner 22 refiling after he obtains the necessary authorization from the Ninth Circuit Court of 23 Appeals. The motion to proceed IFP (ECF No. 2) and motion for appointment of counsel 24 (ECF No. 3) are DENIED as moot. Further, the Court finds no certificate of appealability 25 is warranted because Petitioner has not shown “jurists of reason” could debate or differ on 26 27 1 Petitioner filed another a petition for habeas corpus challenging the same conviction 28 (SCN160404) on June 27, 2016. See Lawrie v. Kernan, No. 16-cv-1656-JAH-DHB (S.D. Cal.). That 1 || whether the instant Petition is successive. See Slack, 529 U.S. at 484. 2 IT IS SO ORDERED. 3 |} DATED: November 29, 2023 4 — 5 nsook Ohta ‘ United States District Judge 7 8 9 10 1] 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28