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