Ghafur v. Davis

Filing 12

ORDER DISMISSING Successive Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. 2244(b); ORDER DIRECTING Clerk of Court to Enter Judgment and CLOSE CASE; ORDER DECLINING ISSUANCE OF CERTIFICATE OF APPEALABILITY signed by Magistrate Judge Gary S. Austin on 10/1/2012. CASE CLOSED. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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KHADIJAH GHAFUR,

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1:12-CV-01460 GSA HC

Petitioner,

ORDER DISMISSING SUCCESSIVE
PETITION FOR WRIT OF HABEAS
CORPUS PURSUANT TO
28 U.S.C. § 2244(b)

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v.
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R. DAVIS, Warden,

ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT AND CLOSE CASE

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Respondent.
____________________________________/

ORDER DECLINING ISSUANCE OF
CERTIFICATE OF APPEALABILITY

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. She has consented to the jurisdiction of the magistrate judge pursuant

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to 28 U.S.C. § 636(c).

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In the petition filed on September 4, 2012, Petitioner challenges her 2006 conviction in

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Fresno County Superior Court for theft, embezzlement and fraud. A review of the Court’s dockets

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and files shows Petitioner has already sought habeas relief with respect to these convictions in

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Ghafur v. Eichenberger, case no. 1:08-cv-01502 OWW JMD HC. In that case, the petition was

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denied and judgment was entered on March 31, 2011.

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

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

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

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constitutional right or 2) the factual basis of the claim was not previously discoverable through due

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diligence, and these new facts establish by clear and convincing evidence that but for the

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constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying

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offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a

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second or successive petition meets these requirements, which allow a petitioner to file a second or

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successive petition.

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Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by this

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

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

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obtain leave from the Ninth Circuit before she can file a second or successive petition in district

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court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or

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

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a district court lacks subject-matter jurisdiction over a second or successive petition. Pratt v. United

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States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997),

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cert. denied, 117 S.Ct. 794 (1997); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996).

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Because the current petition was filed after April 24, 1996, the provisions of the

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Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current

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petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that she has

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obtained prior leave from the Ninth Circuit to file her successive petition attacking the conviction.

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That being so, this Court has no jurisdiction to consider Petitioner's renewed application for relief

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from that conviction under Section 2254 and must dismiss the petition. See Greenawalt, 105 F.3d at

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1277; Nunez, 96 F.3d at 991. If Petitioner desires to proceed in bringing this petition for writ of

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habeas corpus, she must file for leave to do so with the Ninth Circuit. See 28 U.S.C. § 2244 (b)(3).

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CERTIFICATE OF APPEALABILITY

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A state prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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district court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-

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El v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue

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a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:

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(a) In a habeas corpus proceeding or a proceeding under section 2255 before a
district judge, the final order shall be subject to review, on appeal, by the court
of appeals for the circuit in which the proceeding is held.

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(b) There shall be no right of appeal from a final order in a proceeding to test the
validity of a warrant to remove to another district or place for commitment or trial
a person charged with a criminal offense against the United States, or to test the
validity of such person’s detention pending removal proceedings.

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(c)
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(1) Unless a circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals from–
(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State
court; or

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(B) the final order in a proceeding under section 2255.

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(2) A certificate of appealability may issue under paragraph (1) only if the
applicant has made a substantial showing of the denial of a constitutional right.

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(3) The certificate of appealability under paragraph (1) shall indicate which
specific issue or issues satisfy the showing required by paragraph (2).

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If a court denies a petitioner’s petition, the court may only issue a certificate of appealability

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“if jurists of reason could disagree with the district court’s resolution of h[er] constitutional claims or

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that jurists could conclude the issues presented are adequate to deserve encouragement to proceed

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further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000). While the

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petitioner is not required to prove the merits of his case, she must demonstrate “something more than

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the absence of frivolity or the existence of mere good faith on h[er] . . . part.” Miller-El, 537 U.S. at

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338.

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In the present case, the Court finds that reasonable jurists would not find the Court’s

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determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or

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deserving of encouragement to proceed further. Petitioner has not made the required substantial

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showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to issue a

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certificate of appealability.

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ORDER

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Accordingly, IT IS HEREBY ORDERED:

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1) The petition for writ of habeas corpus is DISMISSED as successive;

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2) The Clerk of Court is DIRECTED to enter judgment and close the case; and

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3) The Court DECLINES to issue a certificate of appealability.

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IT IS SO ORDERED.

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Dated:
6i0kij

October 1, 2012

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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