John Keller v. Dave Davey

Filing 10

ORDER DISMISSING SUCCESSIVE HABEAS ACTION by Judge R. Gary Klausner. Petitioner previously challenged his conviction in this Court. The current petition raises the same issues he already raised in that earlier challenge. Moreover, Petitioners previ ous case is still pending before the Ninth Circuit Court of Appeals. The record establishes that Petitioner did not have permission from the appellate court to file this action. The petition is subject to summary dismissal. The action is therefore DISMISSED without prejudice. (See Order for further details) Case Terminated. Made JS-6. (vm)

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IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

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JOHN KELLER,
Petitioner,

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Case No. CV 15-2838 RGK (MRW)
ORDER DISMISSING SUCCESSIVE
HABEAS ACTION

v.
DAVE DAVEY, Warden,
Respondent.

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The Court vacates the reference of this action to the Magistrate Judge and

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summarily dismisses the action pursuant to the successive habeas petition rule in

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28 U.S.C. § 2244.

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***
This is a state habeas action. Petitioner is currently serving a 15-year term in
state prison following his no contest plea to an attempted robbery charge.
This is his second habeas action in federal court challenging that conviction.

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In Petitioner’s first action, he raised issues regarding ineffective assistance of

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counsel, his mental status at the time of his plea, and the sentence imposed upon

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him. (Keller v. Gibson, No. 14-2331 RGK (MRW) (C.D. Cal.).) In late 2014, the

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Court dismissed the first habeas action with prejudice for raising issues that were

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Tollett-barred by his plea. (Keller, No. 14-2331, Docket # 33.) Petitioner filed a

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notice of appeal. The matter is pending in the United States Court of Appeals for

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the Ninth Circuit. (Keller v. Gibson, No. 14-56835 (9th Cir.).)

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Petitioner commenced the present habeas action in this Court in April 2015.

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The petition raises issues similar to those he previously presented to the Court.

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The current petition was not accompanied by a certificate from the Court of

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Appeals authorizing a successive habeas action.

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Magistrate Judge Wilner screened Petitioner’s current petition. (Docket

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# 6.) Judge Wilner explained the successive-petition-authorization rule to

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Petitioner. Judge Wilner also directed Petitioner to submit a statement as to why

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the action should not be summarily dismissed.

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Petitioner submitted a memorandum in response to the Court’s order.

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(Docket # 8.) The memorandum generally reiterated Petitioner’s contentions

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regarding the merits of his claim and his dissatisfaction with the Court’s dismissal

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of the first habeas action. However, nowhere in Petitioner’s submission was there

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a cogent explanation as to why the current action was not successive under federal

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law.

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***
If it “appears from the application that the applicant or person detained is not

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entitled” to habeas relief, a court may dismiss a habeas action without ordering

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service on the responding party. 28 U.S.C. § 2243; see also Rule 4 of Rules

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Governing Section 2254 Cases in United States District Courts (petition may be

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summarily dismissed if petitioner plainly not entitled to relief); Local Civil

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Rule 72-3.2 (magistrate judge may submit proposed order for summary dismissal

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to district judge “if it plainly appears from the face of the petition [ ] that the

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petitioner is not entitled to relief”).

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Under federal law, a state prisoner is generally required to present all

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constitutional challenges to a state conviction in a single federal action. A habeas

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petition is second or successive – and subject to summary dismissal under

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28 U.S.C. § 2244(b) – when the petition “raises claims that were or could have

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been adjudicated on the merits” in the first action. McNabb v. Yates, 576 F.3d

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1028, 1029 (9th Cir. 2009). A prisoner must obtain authorization from the Court

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of Appeals to pursue such a successive habeas petition before the new petition may

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be filed in district court. 28 U.S.C. § 2244(b)(3); Burton v. Stewart, 549 U.S. 147

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(2007) (dismissing successive petition for failure to obtain authorization from court

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of appeals).

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***

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The current action is successive. Petitioner previously challenged his

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conviction in this Court. The current petition raises the same issues he already

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raised in that earlier challenge. Moreover, Petitioner’s previous case is still

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pending before the Ninth Circuit Court of Appeals. The record establishes that

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Petitioner did not have permission from the appellate court to file this action. The

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petition is subject to summary dismissal. The action is therefore DISMISSED

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without prejudice.

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IT IS SO ORDERED.

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Dated: May 11, 2015

___________________________________
HON. R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE

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