Phillip Norris Thompson v. Josie Gastelo

Filing 14

ORDER DISMISSING SUCCESSIVE HABEAS ACTION WITHOUT PREJUDICE by Judge Stephen V. Wilson, re: Petition for Writ of Habeas Corpus (2254), 1 . The action is DISMISSED without prejudice as successive. IT IS SO ORDERED. Case Terminated. Made JS-6. (mz) Modified on 11/16/2017 (mz).

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

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PHILLIP NORRIS THOMPSON,
Petitioner,

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v.

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ORDER DISMISSING SUCCESSIVE
HABEAS ACTION WITHOUT
PREJUDICE

JOSIE GASTELO, Warden,

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Case No. CV 17-4081 SVW (MRW)

Respondent.

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The Court summarily dismisses this action without prejudice pursuant to the
successive habeas petition rule under 28 U.S.C. §§ 2243 and 2244.
***

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1.

Petitioner is a state prisoner. He is serving a life sentence based on

his 1999 conviction for first degree murder.
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Petitioner previously sought habeas relief in this Court related to that

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conviction. The Court denied the habeas petition on the merits in 2005.

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Thompson v. Garcia, No. CV 02-2492 GHK (FMO (C.D. Cal.) (Docket # 19). The

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United States Court of Appeals for the Ninth Circuit declined to issue a certificate

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of appealability. (Docket # 29.)

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3.

Petitioner’s current action argues that a recent state court judicial

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decision regarding California’s jury instructions for murder liability (People v.

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Chiu, 59 Cal. 4th 155 (2014)) impacts Petitioner’s long-concluded criminal case.

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The petition was not accompanied by a certificate from the Ninth Circuit

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authorizing a successive habeas action pursuant to 28 U.S.C. § 2244(b). Petitioner

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failed to disclose the existence of his earlier habeas action in this Court. (Petition

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at 7.)

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4.

The Attorney General subsequently moved to vacate the order

requiring it to respond to the petition and to dismiss the action as successive.

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(Docket # 8.) Petitioner filed a short response to the motion that failed to identify

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any legitimate reason under federal law why the Court should consider this second

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habeas action.

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***
5.

If it “appears from the application that the applicant or person

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detained is not entitled” to habeas relief, a court may dismiss a habeas action

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without ordering service on the responding party. 28 U.S.C. § 2243; see

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also Rule 4 of Rules Governing Section 2254 Cases in United States District

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Courts (petition may be summarily dismissed if petitioner plainly not entitled to

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relief); Local Civil Rule 72-3.2 (magistrate judge may submit proposed order for

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summary dismissal to district judge “if it plainly appears from the face of the

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petition [ ] that the petitioner is not entitled to relief”).

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6.

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. “Before a

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second or successive [habeas petition] is filed in the district court, the applicant

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shall move in the appropriate court of appeals for an order authorizing the district

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court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A prisoner must

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obtain authorization from the Court of Appeals to pursue such a successive habeas

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petition before the new petition may be filed in district court. Id.; Burton v.

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Stewart, 549 U.S. 147, 156 (2007) (district court without jurisdiction to consider

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successive habeas action when prisoner “neither sought nor received authorization

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from the Court of Appeals before filing”).

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7.

The current petition challenges Petitioner’s 1999 murder conviction.

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The Court previously denied habeas relief regarding that criminal conviction.

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(CV 02-2492.) Petitioner failed to obtain permission from the federal appellate

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court to bring the present habeas action. On this basis, the current petition is

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subject to summary dismissal. See 28 U.S.C. § 2244(b); Burton, 549 U.S. at 156.

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***
Because the Court does not have jurisdiction to consider Petitioner’s claim,
the action is DISMISSED without prejudice as successive.
IT IS SO ORDERED.

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Dated: 11/15/2017

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___________________________________
HON. STEPHEN V. WILSON
UNITED STATES DISTRICT JUDGE

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Presented by:

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____________________________________
HON. MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE

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