Malone v. Felker

Filing 38

ORDER DISMISSING 33 Motion to Vacate, Set Aside, or Correct Sentence; ORDER DENYING 34 Motion to Appoint Counsel; ORDER DENYING 35 Motion for Extension signed by District Judge Anthony W. Ishii on 3/2/2017. (Sant Agata, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10
11

MICHAEL MALONE,

12
13
14
15

Petitioner,
v.
MATTHEW KRAMER,

No. 1:07-cv-00743-AWI-SMS (HC)
ORDER DISMISSING MOTION TO
VACATE, SET ASIDE, OR CORRECT
SENTENCE (Doc. #33)
ORDER DENYING MOTION TO APPOINT
COUNSEL (Doc. #34)

Respondents.
ORDER DENYING MOTION FOR
EXTENSION (Doc. #35)

16
17
18

On July 19, 2010, the undersigned issued an order denying the petition for writ of habeas

19

corpus on the merits. Petitioner appealed to the Ninth Circuit and on October 13, 2011, the

20

judgment was affirmed.

21

On July 25, 2016, Petitioner filed three motions in this closed case: 1) A motion under 28

22

U.S.C. § 2255 to vacate, set aside, or correct sentence; 2) A motion for appointment of counsel;

23

and 3) A motion for extension of time with respect to the § 2255 motion. Petitioner’s various

24

motions will be denied.

25

28 U.S.C. § 2255 applies to post-conviction challenges to a federal prisoner’s conviction

26

or sentence. See 28 U.S.C. § 2255; Nettles v. Grounds, 830 F.3d 922, 931 n.6 (9th Cir. 2016) (en

27

banc); Woods v. Carey, 525 F.3d 886, 889 n.2 (9th Cir. 2008). 28 U.S.C. § 2254 applies to post-

28

conviction challenges by a state prisoner challenging his conviction or sentence. See 28 U.S.C. §
1

1

2254; Woods, 525 F.3d at 889 n.2; Stone v. Cardwell, 620 F.2d 212, 213 (9th Cir. 1980). Since

2

Petitioner is a state prisoner, he must seek relief pursuant to § 2254. See id. Therefore, despite

3

invocation of § 2255, the Court will view Petitioner’s motion as brought under § 2254.

4

So viewing the petitioner, as noted above, a prior § 2254 petition by Petitioner was denied

5

on July 19, 2010. Petitioner acknowledges this fact by stating that he pursuing a second or

6

successive action. (Doc. No. 35 at p. 1.)

7

A federal court must dismiss a second or successive petition that raises the same grounds

8

as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive

9

petition raising a new ground unless the petitioner can show that (1) the claim rests on a new,

10

retroactive, constitutional right, or (2) the factual basis of the claim was not previously

11

discoverable through due diligence, and these new facts establish by clear and convincing

12

evidence that but for the constitutional error, no reasonable factfinder would have found the

13

applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the

14

district court that decides whether a second or successive petition meets these requirements. 28

15

U.S.C. § 2244 (b)(3)(A) provides: "Before a second or successive application permitted by this

16

section is filed in the district court, the applicant shall move in the appropriate court of appeals for

17

an order authorizing the district court to consider the application." In other words, Petitioner

18

must obtain leave from the Ninth Circuit before he can file a second or successive petition in

19

district court. See Burton v. Stewart, 549 U.S. 147, 152-53 (2007). This Court must dismiss any

20

second or successive petition unless the Court of Appeals has given Petitioner leave to file the

21

petition because a district court lacks subject-matter jurisdiction over a second or successive

22

petition. Burton, 549 U.S. at 152; United States v. Washington, 653 F.3d 1057, 1062-65 (9th Cir.

23

2011); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001).

24

Here, Petitioner makes no showing that he has obtained prior leave from the Ninth Circuit

25

to file this successive petition attacking the conviction. Thus, this Court has no jurisdiction to

26

consider Petitioner’s renewed application for relief from that conviction under § 2254. See

27

Burton, 549 U.S. at 152; Washington, 653 F.3d at 1062-65; Cooper, 274 F.3d at 1274. Therefore,

28

the petition must be denied.
2

1

Petitioner has also filed a motion for appointment of counsel with respect to his motion to

2

vacate. There currently exists no absolute right to appointment of counsel in habeas proceedings.

3

See Roe v. Coursey, 469 Fed. Appx. 622, 624 (9th Cir. 2012); Anderson v. Heinze, 258 F.2d 479,

4

481 (9th Cir. 1958). However, Title 18 U.S.C. §3006A(a)(2)(B) authorizes the appointment of

5

counsel at any stage of the case if "the interests of justice so require." See Rule 8(c), Rules

6

Governing § 2254 Cases. The instant case is closed, Petitioner has not obtained permission to file

7

a successive petition, and the Court does not find that the interests of justice require the

8

appointment of counsel at the present time.

9

In addition, Petitioner has filed a motion for extension of time with respect to his habeas

10

petition. Because the Court is dismissing the petition for lack of jurisdiction, the motion for an

11

extension of time will be denied as moot.

12

Finally, because reasonable jurists would not disagree that this Court is without

13

jurisdiction to grant Petitioner’s petitioner because the petition is an unauthorized successive

14

petition, the Court declines to issue a certificate of appealability. See 28 U.S.C. § 2253; Slack v.

15

McDaniel, 529 U.S. 473, 484 (2000).

16

ORDER

17

Accordingly, IT IS HEREBY ORDERED:

18

1. Petitioner’s petitioner, filed on July 25, 2016 (Doc. No. 33) is DISMISSED without

19

prejudice due to lack of jurisdiction;

20

2. Petitioner’s motion for appointment of counsel (Doc. No. 34) is DENIED;

21

3. Petitioner’s motion for extension of time (Doc. No. 35) is DENIED as moot;

22

4. The Court declines to issue a certificate of appealability; and

23

5. This case remains CLOSED.

24
25
26

IT IS SO ORDERED.
Dated: March 2, 2017
SENIOR DISTRICT JUDGE

27
28
3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4