King v. Thornell et al

Filing 18

ORDER ADOPTING REPORT AND RECOMMENDATION re: 16 Report and Recommendation. The Petition for a Writ of Habeas Corpus (Doc. 1 ) is DENIED. The Clerk shall enter a judgment of dismissal without prejudice. A Certificate of Appealability and leave to proceed in forma pauperis on appeal are DENIED because the dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling debatable. Signed by Judge Krissa M Lanham on 1/2/25. (DXD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Frederick King, Jr.,
Petitioner,

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v.

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Ryan Thornell, et al.,

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No. CV-23-01962-PHX-KML
ORDER

Respondents.

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In 2003, petitioner Frederick King, Jr., was convicted in state court of first-degree

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felony murder, two counts of attempted second degree murder, and attempted robbery.

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After King pursued a direct appeal and multiple rounds of post-conviction relief in state

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court, in 2014 he filed a habeas corpus petition in federal court. That petition was denied

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in 2015 as untimely and King did not seek a certificate of appealability. King filed a

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second federal petition for habeas corpus in 2023. Magistrate Judge Michael T. Morrissey

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issued a Report and Recommendation (“R&R”) finding King had filed a second or

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successive habeas petition not authorized by the court of appeals.1 (Doc. 16 at 8.) King

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filed objections.
A district judge “may accept, reject, or modify, in whole or in part, the findings or

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King sought permission from the Ninth Circuit to file a second or successive petition
raising the same arguments he made in his petition here. Motion for Leave to File a
“Second or Successive” Petition, King v. Thornell, No. 23-2294 (9th Cir. Sept. 18, 2023).
The Ninth Circuit denied King’s request. King v. Thornell, No. 23-2294 (9th Cir. Dec.
14, 2023).

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recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). The district court

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must review de novo the portions to which an objection is made. Id. The district court

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need not, however, review the portions to which no objection is made. See Schmidt v.

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Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (“[D]e novo review of factual and

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legal issues is required if objections are made, but not otherwise.”) (quotation marks and

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citation omitted).

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King objects to the R&R, arguing his petition is not second or successive for two
main reasons.

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First, according to King, “[a] dismissal for untimeliness presents a permanent and

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incurable bar to a factual review of the underlying claims” but there is no authority “on

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whether a second petition filed after the first petition, which does not seek to review

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claims previously presented in a habeas petition, is considered ‘second’ or ‘successive.’”

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(Doc. 17 at 3.) That is incorrect. “[D]ismissal of a habeas petition as untimely constitutes

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a disposition on the merits and . . . a further petition challenging the same conviction

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would be ‘second or successive.’” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).

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Second, King argues the Arizona Supreme Court’s 2022 denial of his sixth

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petition for review constitutes an intervening judgment permitting him to file a petition

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now. (Doc. 17 at 2–3.) But “[a] habeas petition is second or successive . . . if it raises

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claims that were or could have been adjudicated on the merits.” Id. (emphasis added). Put

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differently, “[a] later-filed petition is precluded as second or successive . . . if the claim it

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raises was ripe and could have been brought in the prisoner’s prior petition challenging

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the same judgment.” Creech v. Richardson, 94 F.4th 847, 849 (9th Cir. 2024). The claim

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in the current later-filed petition, which is premised on a change in Arizona law that went

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into effect in 2006, could have been brought in King’s first federal petition in 2014.

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Therefore, the R&R is correct that the current petition is an unauthorized second or

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successive petition.

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IT IS ORDERED the Report and Recommendation (Doc. 16) is ADOPTED. The

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petition for a writ of habeas corpus (Doc. 1) is DENIED. The Clerk of Court shall enter a

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judgment of dismissal without prejudice.

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IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed

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in forma pauperis on appeal are DENIED because the dismissal of the petition is justified

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by a plain procedural bar and jurists of reason would not find the procedural ruling

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debatable.

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Dated this 2nd day of January, 2025.

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