Orduno v. Ryan et al

Filing 20

ORDER: The petition is dismissed with prejudice as an unauthorized second or successive petition. (Doc. 1 ). A Certificate of Appealability is DENIED. Signed by Magistrate Judge Eric J Markovich on 10/20/2017. (See Order for details) (DPS)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Aminadab Orduno, Petitioner, 10 11 ORDER v. 12 No. CV-15-00279-TUC-EJM Charles Ryan, et al., 13 Respondents. 14 15 Pending before the Court is a pro se petition dated June 29, 2015, which was filed 16 by Aminadab Orduno (“petitioner”) pursuant to 28 U.S.C. § 2254. (Doc. 1). The 17 petitioner claims that his trial counsel was ineffective in failing to secure a beneficial 20- 18 year plea agreement. For the reasons discussed below, the § 2254 petition is dismissed for 19 lack of jurisdiction because it is an improper successive petition. 20 I. FACTUAL AND PROCEDURAL BACKGROUND 21 On September 28, 2008, the petitioner filed in this court a petition for a writ of 22 habeas corpus challenging his convictions for first-degree burglary and multiple counts of 23 kidnapping and aggravated assault with a deadly weapon, which resulted in a sentence of 24 27.5 years of imprisonment. See CV-08-526-FRZ. One of the claims alleged was that trial 25 counsel was ineffective in securing the 20-year plea agreement for the charged offenses. 26 In a Report and Recommendation dated January 14, 2013, the assigned Magistrate 27 Judge reached the merits of this claim and concluded that counsel was not ineffective. 28 (CV-08-526-FRZ Doc. 18). The District Court adopted the Report and Recommendation 1 in an Order dated September 10, 2013, and dismissed the habeas petition. (CV-08-526- 2 FRZ Doc. 26). 3 Petitioner raises this same ineffective assistance of counsel claim in his 2015 4 petition. Although the petitioner acknowledges that the instant petition is a “successive 5 petition,” he does not allege that he sought authorization from the United States Court of 6 Appeals for the Ninth Circuit to file a successive federal habeas petition. 7 II. DISCUSSION 8 A second or successive federal habeas corpus petition may not be filed in the 9 district court unless previously authorized by the appropriate federal court of appeals. See 10 28 U.S.C. 2244(b)(3)(A). If a petitioner does not first obtain the court of appeals’ 11 authorization, the district court lacks jurisdiction to consider the second or successive 12 petition. See United States v. Washington, 653 F.3d 1057, 1065 (9th Cir. 2011); Burton v. 13 Stewart, 549 U.S. 147, 152–53 (2007). A federal habeas petition is “successive” if the 14 claim in the petition was or could have been previously adjudicated on the merits in the 15 prior petition and the reasserted claim was not previously dismissed without prejudice to 16 allow for its proper exhaustion in state court. Cooper v. Calderon, 274 F.3d 1270, 1272– 17 73 (9th Cir. 2001). 18 Here, petitioner’s claim that counsel was ineffective in securing the 20-year plea 19 agreement was raised and adjudicated on the merits in his first habeas petition in 2008. 20 Specifically, the district court concluded that counsel was not ineffective because the trial 21 court would have rejected the proposed plea deal. (CV-08-526-FRZ Docs. 18 & 26). 22 Thus, the instant petition is a clearly a second/successive petition. Because the petitioner 23 has failed to obtain authorization from the Ninth Circuit to file this second/successive 24 petition, this Court does not have jurisdiction over the petition under 28 U.S.C. § 25 2244(b)(3)(A). 26 III. CONCLUSION 27 Accordingly, 28 IT IS HEREBY ORDERED dismissing the petition with prejudice as an -2- 1 unauthorized second or successive petition. (Doc. 1). 2 IT IS FURTHER ORDERED a Certificate of Appealability is DENIED. 3 Dismissal of the petition is justified by a plain procedural bar and jurists of reason would 4 not find the ruling debatable. 5 Dated this 20th day of October, 2017. 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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