Pugh v. Hatton

Filing 5

ORDER DISMISSING CASE. Signed by Judge Richard Seeborg on 5/22/17. (Attachments: # 1 Certificate/Proof of Service)(cl, COURT STAFF) (Filed on 5/22/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DARRYL ERIC PUGH,

Case No. 17-cv-01400-RS (PR)

United States District Court
Northern District of California

Petitioner,
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v.

ORDER OF DISMISSAL

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S. HATTON,
Respondent.

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INTRODUCTION

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Petitioner has filed a habeas petition challenging the same state convictions he

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challenged in a prior (and now closed) habeas action, Pugh v. Falkner, No. C 07-03579

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VRW. The instant petition will be dismissed as second or successive to the prior petition.

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If petitioner wishes to file a successive habeas petition, he must obtain permission from the

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Ninth Circuit Court of Appeals.

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BACKGROUND

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Petitioner’s prior petition was dismissed as untimely, and judgment was entered in

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favor of respondent, in June 2008. (Pugh, No. C 07-03579 VRW, Dkt. Nos. 10 and 11.) It

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appears petitioner did not appeal the judgment.

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DISCUSSION

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The petition will be dismissed as second or successive. As noted, in 2007 petitioner

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filed a petition regarding the same convictions at issue in the instant action, which was

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dismissed as untimely. A dismissal for untimeliness “constitutes a disposition on the

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merits.” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). Therefore, a “further

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petition challenging the same conviction would be ‘second or successive’ for purposes of

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28 U.S.C. § 2244(b).” Id.

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In order to file a second or successive petition, petitioner must obtain an order from
the Court of Appeals authorizing the district court to consider the petition. See 28 U.S.C.
§ 2244(b)(3)(A). Petitioner has not shown that he has received such authorization.

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United States District Court
Northern District of California

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Accordingly, the instant petition must be dismissed as second or successive, the filing of

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which has not been authorized by the Court of Appeals.
CONCLUSION

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The instant petition is DISMISSED as second or successive, the filing of which has

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not been authorized by the Court of Appeals. If petitioner wishes to file a second or

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successive habeas petition, he first must obtain permission from the Ninth Circuit Court of

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Appeals.

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A certificate of appealability will not issue. Petitioner has not shown “that jurists of

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reason would find it debatable whether the petition states a valid claim of the denial of a

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constitutional right and that jurists of reason would find it debatable whether the district

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court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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The Clerk shall enter judgment in favor of respondent, and close the file.

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IT IS SO ORDERED.
Dated: May ___, 2017
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_________________________
RICHARD SEEBORG
United States District Judge

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ORDER OF DISMISSAL
CASE NO. 17-cv-01400-RS

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