Dunckhurst v. Baughman

Filing 8

ORDER signed by Magistrate Judge Carolyn K. Delaney on 10/14/16 ORDERING that petitioner's request to proceed in forma pauperis (ECF No. 2 ) is GRANTED; Petitioner's motion for appointment of counsel (ECF No. 3 ) is DENIED; the petition is DISMISSED for lack of jurisdiction; and the Clerk of Court shall close this case. CASE CLOSED.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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STEPHEN C. DUNCKHURST,

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No. 2:16-cv-2265 CKD P

Petitioner,
v.

ORDER

BAUGHMAN,
Respondent.

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Petitioner is a state prisoner proceeding pro se with an application for writ of habeas

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corpus pursuant to 28 U.S.C. § 2254. This proceeding was referred to this court by Local Rule

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302 pursuant to 28 U.S.C. § 636(b)(1). Petitioner has submitted a declaration that makes the

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showing required by 28 U.S.C. § 1915(a). Accordingly, petitioner may proceed with this action

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in forma pauperis. Petitioner has consented to Magistrate Judge jurisdiction to conduct all

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proceedings in this action. (ECF No. 6.)

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Petitioner challenges his 2005 conviction in the Shasta County Superior Court for vehicle

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theft and possession of a deadly weapon by a prisoner, for which he was sentenced to a state

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prison term of 33 years to life. Court records reveal that petitioner challenged this same

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conviction in an earlier action, Dunckhurst v. Lopez, No. 2:08-cv-0974 WBS DAD (E.D. Cal.),

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which was dismissed as time-barred on May 29, 2009. The U.S. Court of Appeals for the Ninth

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Circuit affirmed the district court’s order of dismissal on January 10, 2011. Id., ECF No. 38.
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A petition is second or successive if it makes “claims contesting the same custody

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imposed by the same judgment of a state court” that the petitioner previously challenged, and on

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which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147, 153

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(2007). A second or subsequent habeas petition is not considered “successive” if the initial

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habeas petition was dismissed for a technical or procedural reason. See Slack v. McDaniel, 529

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U.S. 473, 485–487 (2000). However, in McNabb v. Yates, 576 F.3d 1028,1030 (9th Cir. 2009),

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the Ninth Circuit held that dismissal of a habeas petition for failure to comply with the AEDPA

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statute of limitations renders subsequent petitions challenging the same conviction successive.

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Because petitioner’s prior federal habeas petition was dismissed for untimeliness, the instant

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petition is successive.
Before filing a successive petition in district court, a petitioner must obtain from the

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appellate court “an order authorizing the district court to consider the application.” 28 U.S.C. §

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2244(b)(3)(A). Without an order from the appellate court, the district court is without jurisdiction

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to consider a second or successive petition. See Burton, 549 U.S. at 152, 157. As petitioner

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offers no evidence that the appellate court has authorized this court to consider a successive

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petition challenging his 2005 conviction, this action should be dismissed for lack of jurisdiction.

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See Dunckhurst v. Adams, No. 2:10-cv-1405 GEB EFB (E.D. Cal.), Order dated Sept. 22, 2011

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dismissing habeas challenge to 2005 conviction as successive. In light of the above, petitioner’s

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motion for appointment of counsel in this action will be summarily denied.

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Accordingly, IT IS HEREBY ORDERED that:

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1. Petitioner’s request to proceed in forma pauperis (ECF No. 2) is granted;

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2. Petitioner’s motion for appointment of counsel (ECF No. 3) is denied; and

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3. The petition is dismissed for lack of jurisdiction; and

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4. The Clerk of Court shall close this case.

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Dated: October 14, 2016

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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