Cole v. Adams
ORDER DISMISSING Successive Petition for Writ of Habeas Corpus; ORDER Directing Clerk of Court to Enter Judgment and Close Case; and ORDER DECLINING Issuance of Certificate of Appealability signed by Magistrate Judge Jennifer L. Thurston on 5/12/2017. CASE CLOSED. (Jessen, A)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
KARI MARIE COLE,
Case No. 1:17-cv-00558-JLT (HC)
ORDER DISMISSING SUCCESSIVE
PETITION FOR WRIT OF HABEAS
DARRELL ADAMS, Warden,
ORDER DIRECTING CLERK OF COURT
TO ENTER JUDGMENT AND CLOSE
ORDER DECLINING ISSUANCE OF
CERTIFICATE OF APPEALABILITY
On June 18, 2000, Petitioner was convicted in the Fresno County Superior Court of
20 second degree murder with gun enhancements. Petitioner was sentenced to an indeterminate
21 term of forty-years-to-life. Petitioner sought review in the state courts.
This petition challenges the 2000 conviction and presents a claim of ineffective assistance
23 of counsel. However, the instant petition is successive. Petitioner has filed two prior habeas
24 petitions concerning the 2000 conviction: Case No. 1:06-cv-00222-LJO-TAG-HC, Cole v.
25 Gonzales (dismissed for failure to prosecute); and Case No. 1:11-cv-00800-GSA-HC, Cole v. On
26 Habeas Corpus (dismissed as successive).
A dismissal for failure to prosecute is treated as a judgment on the merits. Plaut v.
1 Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995); Reyes v. United States, 1999 WL 1021815 *3
2 (E.D.N.Y.1999) (dismissal of first habeas petition for failure to prosecute pursuant to
3 Fed.R.Civ.P. 41(b) constitutes dismissal on the merits and renders subsequently filed habeas
4 petition second or successive). If a previous petition is deemed to have been decided on the
5 merits, then a subsequent petition raising the same claims or challenging the same conviction is
6 treated as a successive petition pursuant to 28 U.S.C. § 2244(b). A federal court must dismiss a
7 second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. §
8 2244(b)(1). The court must also dismiss a second or successive petition raising a new ground
9 unless the petitioner can show that 1) the claim rests on a new, retroactive, constitutional right or
10 2) the factual basis of the claim was not previously discoverable through due diligence, and these
11 new facts establish by clear and convincing evidence that but for the constitutional error, no
12 reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C.
13 § 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a second or
14 successive petition meets these requirements, which allow a petitioner to file a second or
15 successive petition.
Section 2244 (b)(3)(A) provides: "Before a second or successive application permitted by
17 this section is filed in the district court, the applicant shall move in the appropriate court of
18 appeals for an order authorizing the district court to consider the application." In other words,
19 Petitioner must obtain leave from the Ninth Circuit before she can file a second or successive
20 petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must
21 dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave
22 to file the petition because a district court lacks subject-matter jurisdiction over a second or
23 successive petition. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d
24 1270, 1274 (9th Cir. 2001).
Because the current petition was filed after April 24, 1996, the provisions of the
26 Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current
27 petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). Petitioner makes no showing that she has
28 obtained prior leave from the Ninth Circuit to file her successive petition attacking the
That being so, this Court has no jurisdiction to consider Petitioner's renewed
2 application for relief from that conviction under Section 2254 and must dismiss the petition. See
3 Greenawalt, 105 F.3d at 1277; Nunez, 96 F.3d at 991.
CERTIFICATE OF APPEALABILITY
A prisoner seeking a writ of habeas corpus has no absolute entitlement to appeal a district
6 court’s denial of his petition, and an appeal is only allowed in certain circumstances. Miller-El
7 v. Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to
8 issue a certificate of appealability is 28 U.S.C. § 2253, which provides as follows:
(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.
(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.
(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
(B) the final order in a proceeding under section 2255.
(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
(3) The certificate of appealability under paragraph (1) shall indicate
which specific issue or issues satisfy the showing required by paragraph
If a court denies a petitioner’s petition, the court may only issue a certificate of
23 appealability “if jurists of reason could disagree with the district court’s resolution of her
24 constitutional claims or that jurists could conclude the issues presented are adequate to deserve
25 encouragement to proceed further.” Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473,
26 484 (2000). While the petitioner is not required to prove the merits of her case, she must
27 demonstrate “something more than the absence of frivolity or the existence of mere good faith on
28 h[er] . . . part.” Miller-El, 537 U.S. at 338.
In the present case, the Court finds that reasonable jurists would not find the Court’s
2 determination that Petitioner is not entitled to federal habeas corpus relief debatable, wrong, or
3 deserving of encouragement to proceed further. Petitioner has not made the required substantial
4 showing of the denial of a constitutional right. Accordingly, the Court hereby DECLINES to
5 issue a certificate of appealability.
Accordingly, the Court ORDERS:
1) The petition for writ of habeas corpus is DISMISSED as successive;
2) The Clerk of Court is DIRECTED to enter judgment and close the case; and
3) The Court DECLINES to issue a certificate of appealability.
IT IS SO ORDERED.
May 12, 2017
/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE
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