David C. Patkins v. Shawn Hatton

Filing 5

ORDER SUMMARILY DISMISSING PETITION FOR LACK OF SUBJECT MATTER JURISDICTION; REFERRING THE PETITION TO THE U.S. COURT OF APPEALS PURSUANT TO NINTH CIRCUIT RULE 22-3(A); DENYING A CERTIFICATE OF APPEALABILITY by Judge Dolly M. Gee: Pursuan t to Ninth Circuit Rule 22-3(a), the Court refers the habeas Petition to the U.S. Court of Appeals for the Ninth Circuit for consideration as an application for leave to file a second-or-successive habeas petition. This action is dismissed wit hout prejudice for lack of subject-matter jurisdiction pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. LET JUDGMENT BE ENTERED ACCORDINGLY. A certificate of appealability is denied. Case Terminated. Made JS-6. (copy of petition and Appeal form 12 attached) cc:9th Circuit (Attachments: # 1 Petition-part 1, # 2 Petition-part 2, # 3 Appeal form 12) (jm)

(New, 7/1/02; Rev. 7/1/16 )

Must

CIRCUIT RULE 22-3. APPLICATIONS FOR AUTHORIZATION
TO FILE SECOND OR SUCCESSIVE 28 U.S.C. § 2254 PETITION
OR § 2255 MOTION - ALL CASES; STAY OF EXECUTION CAPITAL CASES
(a)

Applications. An applicant seeking authorization to file a second or successive 28 U.S.C.
§ 2254 petition or 28 U.S.C. § 2255 motion in the district court must file an application in
the Court of Appeals demonstrating entitlement to such leave under sections 2254 or
2255. See Form 12. An original in paper format of the application must be filed with the
Clerk of the Court of Appeals unless the application is submitted via Appellate CM/ECF.
No filing fee is required. If an application for authorization to file a second or successive
section 2254 petition or section 2255 motion is mistakenly submitted to the district court,
the district court shall refer it to the court of appeals. If an unauthorized second or
successive section 2254 petition or section 2255 motion is submitted to the district court,
the district court may, in the interests of justice, refer it to the Court of Appeals. (Rev.
12/1/09; Rev. 7/1/13; Rev. 7/1/16)
The applicant must:
(1)

include Form 12 if submitted by an applicant not represented by counsel;

(2)

include the proposed section 2254 petition or section 2255 motion that the
applicant seeks to file in the district court;

(3)

state as to each claim presented whether it previously has been raised in any state
or federal court and, if so, the name of the court and the date of the order
disposing of such claim(s); and

(4)

state how the requirements of sections 2244(b) or 2255 have been satisfied.

(b)

Attachments. If reasonably available to the applicant, the application must include
copies of all relevant state court orders and decisions. (Rev. 12/1/09; Rev 7/1/16)

(c)

Service.
(1)

(2)
(d)

Capital Cases: In capital cases, the applicant must serve a copy of the
application, attachments, and proposed section 2254 petition/section 2255 motion
on the respondent, and must attach a certificate of service to the application filed
with the Court. (Rev. 7/1/16)
Noncapital Cases: In noncapital cases, service of the application on the
respondent is not required. (New 7/1/16)

Response.
(1)

Capital Cases: In capital cases where an execution date is scheduled and no stay
is in place, respondent shall respond to the application and file supplemental
attachments as soon as practicable. Otherwise, in capital cases, respondent shall

respond and file supplemental attachments within 14 days of the date the
application is served. (Rev. 12/1/09)
(2)

Noncapital Cases: In noncapital cases, no response is required unless ordered by
the Court. Respondent may include supplemental attachments with its response.
(Rev. 7/1/16)

(e)

Decision. The application will be determined by a three-judge panel. In capital cases
where an execution date is scheduled and no stay is in place, the Court will grant or deny
the application, and state its reasons therefore, as soon as practicable.

(f)

Stays of Execution. If an execution date is scheduled and no stay is in place, any judge
may, if necessary, enter a stay of execution, see Circuit Rule 22-2(e), but the question
will be presented to the panel as soon as practicable. If the Court grants leave to file a
second or successive application, the Court shall stay the applicant’s execution pending
disposition of the second or successive petition by the district court.

Cross Reference:
Circuit Rule 25-5(b)

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 22-3
The district court is required to transfer mistakenly filed applications for authorization to file a
second or successive section 2254 petition or 2255 motion. If an applicant files a document that
appears to be an unauthorized section 2254 petition or 2255 motion and facially alleges a claim
based on a new rule of constitutional law or newly discovered evidence of actual innocence, the
district court may transfer the filing to the court of appeals in the interests of justice or, in the
alternative, the district court may dismiss the filing without prejudice to the applicant seeking
authorization from the court of appeals on Ninth Circuit Form 12.
The rule requires applicants to provide this Court with the proposed petition or motion. Pro se
applicants are encouraged to use the form petition or motion adopted by the district court where
the applicant anticipates filing the document. (New 7/1/16)