Rucks v. Ryan et al

Filing 5

ORDER denying 3 Motion to Appoint Counsel as moot. Petitioner's Petition for Writ of Habeas Corpus (Doc. 1 ) and this action are dismissed without prejudice, and the Clerk of Court must enter judgment accordingly. The Clerk of Court must p rovide Petitioner with a copy of the form recommended by the Ninth Circuit Court of Appeals for filing an Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255. Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). (See document for further details). Signed by Judge David G Campbell on 1/26/15. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kevin R. Rucks,

No. CV 14-2606-PHX-DGC (MHB)
Petitioner,

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v.

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Charles L. Ryan, et al.,

ORDER

Respondents.

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Petitioner Kevin R. Rucks, who was confined in the Arizona State Prison

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Complex-Douglas, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28

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U.S.C. § 2254 (Doc. 1) and has paid the $5.00 filing fee. On December 12, 2014,

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Petitioner filed a Motion to Appoint Counsel (Doc. 3). The Court will dismiss the

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Petition without prejudice and deny the Motion to Appoint Counsel.

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I.

Petition

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On March 14, 2011, Petitioner was convicted, pursuant to plea agreements, in four

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cases in Maricopa County Superior Court. In case #CR2010-136392, Petitioner was

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convicted of hindering prosecution and sentenced to 2.25 years.1 In case #CR2010-

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006561, Petitioner was convicted of forgery and sentenced to 4.5 years.2

In case

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See http://www.courtminutes.maricopa.gov/docs/Criminal/032011/m4646425.pdf
(last visited Jan. 14, 2014).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/032011/m4646426.pdf
(last visited Jan. 14, 2014).

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#CR2009-176839, Petitioner was convicted of possession or use of marijuana and

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sentenced to one year.3 In case #CR2009-126573, Petitioner was convicted of possession

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or use of dangerous drugs and sentenced to 4.5 years.4 Petitioner’s sentences were

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ordered to run concurrently. On July 12, 2012, the Superior Court denied Petitioner’s

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motions for post-conviction relief.5 Rather than file a petition for review in the Arizona

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Court of Appeals, Petitioner filed special actions, but the Arizona Court of Appeals

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denied jurisdiction. On July 16, 2012, Petitioner filed his first petition for a writ of

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habeas corpus regarding the above-listed convictions, Rucks v. Ryan et al, 12-1522-PHX-

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DGC (MHB). In a May 20, 2013 Order (Doc. 33 in 12-1522-PHX-DGC (MHB)), the

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Court denied the petition, and the Clerk of Court entered Judgment accordingly (Doc. 34

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in 12-1522-PHX-DGC (MHB)).

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On December 1, 2014, Petitioner commenced the current case by filing a new

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habeas petition in which he again challenges his convictions in CR2010-136392,

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CR2010-006561, CR2009-176839, and CR2009-126573. This is Petitioner’s second

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habeas challenge to his convictions in these cases. Under 28 U.S.C. § 2244, a petitioner

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may not file a second or successive § 2254 petition in the district court unless the

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petitioner has obtained a certification from the Ninth Circuit Court of Appeals

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authorizing the district court to consider the second or subsequent § 2254 petition. A

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habeas petition is “‘second or successive’ if it raises claims that were or could have been

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adjudicated on their merits in an earlier petition.” Cooper v. Calderon, 274 F.3d 1270,

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1273 (9th Cir. 2001) (per curiam).

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successive petition.

The current petition, therefore, is a second or

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3

See http://www.courtminutes.maricopa.gov/docs/Criminal/032011/m4646427.pdf
(last visited Jan. 14, 2014).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/032011/m4646428.pdf
(last visited Jan. 14, 2014).
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See http://www.courtminutes.maricopa.gov/docs/Criminal/072012/m5326522.pdf
(last visited Aug. 21, 2012).
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Petitioner has not presented a certification from the Ninth Circuit authorizing the

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Court to consider a second or subsequent § 2254 petition. Accordingly, the current

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Petition and this action must be dismissed as a successive petition. The Court will

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dismiss the case without prejudice so that Petitioner can seek certification from the Ninth

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Circuit to file a second or successive § 2254 petition.

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IT IS ORDERED:

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(1)

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Because the Court will dismiss this action, Petitioner’s Motion to Appoint

Counsel (Doc. 3) is denied as moot.
(2)

Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) and this action are

dismissed without prejudice, and the Clerk of Court must enter judgment accordingly.
(3)

The Clerk of Court must provide Petitioner with a copy of the form

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recommended by the Ninth Circuit Court of Appeals for filing an Application for Leave

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to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28

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U.S.C. § 2255.

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(4)

Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the

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event Petitioner files an appeal, the Court declines to issue a certificate of appealability

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because reasonable jurists would not find the Court’s procedural ruling debatable. See

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Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Dated this 26th day of January, 2015.

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Form 12.
(New, 7/1/02)

Application for Leave to File Second or Successive Petition
Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255
UNITED STATES COURT of APPEALS
for the NINTH CIRCUIT
95 Seventh Street
San Francisco, California 94103
Application for Leave to File Second or Successive Petition
Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255

Docket Number ________________________________________________________________
(to be provided by court)
Petitioner's name _______________________________________________________________
Prisoner registration number
Address ______________________________________________________________________
Instructions - Read Carefully
(1) This application, whether handwritten or typewritten, must be legible and signed by the petitioner under penalty
of perjury. An original and five (5) copies must be provided to the Clerk of the Ninth Circuit. The application
must comply with 9th Circuit Rule 22-3, which is attached to this form.
(2) All questions must be answered concisely. Add separate sheets if necessary.
(3) The petitioner shall serve a copy of this application and any attachments on respondent and must complete and
file a proof of service with this application.
(4) The petitioner shall attach to this application copies of the magistrate judge's report and recommendation and
the district court's opinion in any prior federal habeas proceeding under 28 U.S.C. § 2254 or § 2255 or state why
such documents are unavailable to petitioner.

You Must Answer the Following Questions:
(1) What conviction(s) are you challenging?
______________________________________________________________________________
______________________________________________________________________________

(2)

In what court(s) were you convicted of these crime(s)?

______________________________________________________________________________
______________________________________________________________________________

(3)

What was the date of each of your conviction(s) and what is the length of each sentence?

______________________________________________________________________________
______________________________________________________________________________

For questions (4) through (9), provide information separately for each of your previous §§ 2254
or 2255 proceedings. Use additional pages if necessary.

(4)

With respect to each conviction and sentence, have you ever filed a petition or motion for habeas
corpus relief in federal court under 28 U.S.C. § 2254 or § 2255?
Yes G

No G

(a) In which federal district court did you file a petition or motion?
________________________________________________________________________
(b) What was the docket number? ______________________________________________
(c) On what date did you file the petition/motion? ___________________________________
(5)

What grounds were raised in your previous habeas proceeding?
(list all grounds and issues previously raised in that petition/ motion)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

(6)

Did the district court hold an evidentiary hearing? Yes

G

No G

(7)

How did the district court rule on your petition/motion?

G
G
G

District court dismissed petition/motion? If yes, on what grounds?
__________________________________________________________________
District court denied petition/motion;
District court granted relief;
if yes, on what claims and what was the relief?
__________________________________________________________________

(Attach copies of all reports and orders issued by the district court.)
(8)

(9)

On what date did the district court decide your petition/motion?
________________________________________________________________________
Did you file an appeal from that disposition? Yes G

No G

(a) What was the docket number of your appeal? __________________________________
(b) How did the court of appeals decide your appeal?_______________________________
______________________________________________________________________________
______________________________________________________________________________
(10)

State concisely each and every ground or issue you wish to raise in your current petition or
motion for habeas relief. Summarize briefly the facts supporting each ground or issue.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

(11)

For each ground raised, was it raised in the state courts? If so, what did the state courts rule
and when?
________________________________________________________________________

(12)

For each ground/issue raised, was this claim raised in any prior federal petition/motion? (list
each ground separately)
________________________________________________________________________
________________________________________________________________________

(13)

For each ground/issue raised, does this claim rely on a new rule of constitutional law? (list each
ground separately and give case name and citation for each new rule of law)
________________________________________________________________________
________________________________________________________________________

(14)

For each ground/issue raised, does this claim rely on newly discovered evidence? What is the
evidence and when did you discover it? Why has this newly discovered evidence not been
previously available to you? (list each ground separately)
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

(15)

For each ground/issue raised, does the newly discovered evidence establish your innocence?
How?
________________________________________________________________________
________________________________________________________________________

(16)

For each ground/issue raised, does the newly discovered evidence establish a federal
constitutional error? Which provision of the Constitution was violated and how?
________________________________________________________________________
________________________________________________________________________

(17)

Provide any other basis for your application not previously stated.
________________________________________________________________________
________________________________________________________________________
________________________________________________________________________

Date: __________________

Signature:_________________________________

Proof of Service on Respondent MUST be Attached.