John Keller v. Baughman

Filing 10

ORDER DISMISSING SUCCESSIVE HABEAS ACTION by Judge R. Gary Klausner. (See Order for details) Case Terminated. Made JS-6. (vm)

1
2
3
4
5
6
7
8
9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE CENTRAL DISTRICT OF CALIFORNIA

11
12
13

JOHN KELLER,
Petitioner,

14
15
16
17

Case No. CV 16-4605 RGK (MRW)
ORDER DISMISSING SUCCESSIVE
HABEAS ACTION

v.
BAUGHMAN, Warden,
Respondent.

18
19
20
21
22
23
24

The Court summarily dismisses this action pursuant to the successive habeas
petition rule in 28 U.S.C. § 2244.
***
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 third habeas action in federal court challenging that conviction.

25

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

26

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

27

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

28

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

1

were Tollett-barred by his plea. (Keller, No. 14-2331, Docket # 33.) The United

2

States Court of Appeals for the Ninth Circuit denied a certificate of appealability.

3

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

4

Petitioner then filed another action in this Court raising similar challenges to

5

his conviction. (Keller v. Davey, No. CV 15-2838 RGK (MRW) (C.D. Cal.).) The

6

Court concluded that Petitioner’s second action was successive and not filed with

7

advance permission from the appellate court. The Court summarily dismissed the

8

action.

9

Petitioner commenced the present habeas action in this Court in June 2016.

10

This third action appears to present similar claims regarding the legality of

11

Petitioner’s guilty plea and conviction. As before, the petition is not accompanied

12

by a statement of permission from the Court of Appeals.

13

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

14

# 5.) As in the earlier action, the magistrate judge explained the successive-

15

petition-authorization rule to Petitioner. The magistrate judge directed Petitioner

16

to submit a statement as to why the action should not be summarily dismissed.

17

Petitioner failed to file any such statement in response.

18
19

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

20

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

21

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

22

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

23

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

24

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

25

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

26

petitioner is not entitled to relief”).

27

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

28

constitutional challenges to a state conviction in a single federal action. A habeas
2

1

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

2

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

3

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

4

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

5

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

6

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

7

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

8

of appeals).

9

***

10

The current action is successive. Petitioner previously challenged his

11

conviction in this Court in 2014. His petition was denied; the appellate court

12

declined to review that decision. Petitioner filed a second, successive action in

13

2015 without permission from the appellate court. That action was dismissed as

14

required by the statute.

15

The present action – Petitioner’s third – is also successive and filed without

16

permission. The petition is subject to summary dismissal. 28 U.S.C. § 2244(b)(3).

17

The action is therefore DISMISSED without prejudice.

18

IT IS SO ORDERED.

19
20

Dated: August 25, 2016

21

___________________________________
HON. R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE

22
23

Presented by:

24
25
26
27
28

____________________________________
HON. MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE
3