Banks v. Davey

Filing 6

ORDER DISMISSING PETITION as Second or Successive and ORDER DECLINING to Issue a Certificate of Appealability signed by Magistrate Judge Sheila K. Oberto on 7/6/2017. CASE CLOSED. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LARRY BANKS,
Petitioner,

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ORDER DISMISSING PETITION
AS SECOND OR SUCCESSIVE

v.

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No. 1:17-cv-00802-SKO HC

DAVID DAVEY, Warden,
Respondent.

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Screening Order

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Petitioner Larry Banks is a state prisoner proceeding pro se with a petition for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254.1 The petition alleges three claims of ineffective
assistance of counsel arising from Petitioner’s 2009 murder trial. Because Petitioner has filed a
previous habeas petition concerning the same conviction, the Court is required to dismiss the
petition as secondary or successive.
I.

In Fresno County Superior Court in 2009, a jury convicted Petitioner of first degree

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Procedural and Factual Background

murder and use of a knife during the commission of a murder. See Banks v. Gipson (E.D. Cal.
Oct. 30, 2013) (No. 1:11-cv-02067-LJO-MJS HC), affirmed, 637 Fed. Appx. 379 (9th Cir. Feb.
22, 2016) (No. 13-17371). See also People v. Banks, 2011 WL 913459 (Cal. App. Mar. 17, 2011)
(No. F058831). The state court sentenced Petitioner to an indeterminate term of life in prison.

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Pursuant to 28 U.S.C. § 636(c)(1), Petitioner consented, in writing, to the jurisdiction of a United States Magistrate
Judge to conduct all further proceedings in this case, including the entry of final judgment.

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Banks v. Gipson (E.D. Cal. Oct. 30, 2013) (No. 1:11-cv-02067-LJO-MJS HC), affirmed, 637 Fed.

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Appx. 379 (9th Cir. Feb. 22, 2016) (No. 13-17371). Following a direct appeal in California state

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courts, Petitioner filed a federal petition for writ of habeas corpus on December 15, 2011. Id.

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This Court denied the petition, and the U.S. Court of Appeals for the Ninth Circuit affirmed. Id.

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II.

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Preliminary Screening
Rule 4 of the Rules Governing § 2254 Cases requires the Court to conduct a preliminary

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review of each petition for writ of habeas corpus. The Court must dismiss a petition "[i]f it

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plainly appears from the petition . . . that the petitioner is not entitled to relief." Rule 4 of the

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Rules Governing 2254 Cases; see also Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990).

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A petition for habeas corpus should not be dismissed without leave to amend unless it appears

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that no tenable claim for relief can be pleaded were such leave to be granted. Jarvis v. Nelson,

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440 F.2d 13, 14 (9th Cir. 1971).

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III.

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No District Court Jurisdiction Over a Second or Successive Petition
The circuit court of appeals, not the district court, must decide whether a second or

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successive petition satisfies the statutory requirements to proceed. 28 U.S.C. § 2244(b)(3)(A)

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("Before a second or successive petition permitted by this section is filed in the district court, the

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

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to consider the application"). This means that a petitioner may not file a second or successive

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petition in district court until he has obtained leave from the court of appeals. Felker v. Turpin,

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518 U.S. 651, 656-57 (1996). In the absence of an order from the appropriate circuit court, a

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district court lacks jurisdiction over the petition and must dismiss the second or successive

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petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997).

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Petitioner has not secured leave from the Ninth Circuit Court of Appeals to file the above-

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captioned petition. Accordingly, the Court must dismiss it for lack of jurisdiction.

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III.

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Certificate of Appealability
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a

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district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v.

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

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

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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) (1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from—

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(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 issues or issues satisfy the showing required by
paragraph (2).

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If a court denies a habeas 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 his constitutional claims

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

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

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Although the petitioner is not required to prove the merits of his case, he must demonstrate

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"something more than the absence of frivolity or the existence of mere good faith on his . . .

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part." Miller-El, 537 U.S. at 338.
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Reasonable jurists would not find the Court's determination that the petition is a second or
successive petition to be debatable or wrong, or conclude that the issues presented required
further adjudication. Accordingly, the Court should decline to issue a certificate of appealability.

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IV.

Conclusion and Order

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The petition for writ of habeas corpus is hereby DISMISSED as second or successive.

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The Court declines to issue a certificate of appealability. Despite the denial of a certificate of

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appealability, the dismissal is without prejudice to Petitioner’s seeking leave to file a second or

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successive petition pursuant to 28 U.S.C. § 2244(b)(3)(A).

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IT IS SO ORDERED.

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Dated:

July 6, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE
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