Gibson v. Lizarraga

Filing 5

ORDER DISMISSING CASE. Signed by Judge James Donato on 11/7/17. (lrcS, COURT STAFF) (Filed on 11/7/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DAN GIBSON, Petitioner, 8 9 10 ORDER OF DISMISSAL v. JOE LIZARRAGA, Respondent. 11 United States District Court Northern District of California Case No. 17-cv-05317-JD 12 13 Petitioner, a California prisoner, has filed a pro se petition for a writ of habeas corpus 14 pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Monterey County, which is in this 15 district, so venue is proper here. See 28 U.S.C. § 2241(d). He has paid the filing fee. BACKGROUND 16 17 Petitioner was found guilty at a jury trial of killing his wife, but the jury was undecided if 18 the murder was willful, premeditated, and deliberate. People v. Gibson, No. H037519, 2014 WL 19 1278631, at *4-5 (Cal. Ct. App. March 28, 2014). The trial court ordered a retrial on the 20 applicable degree of murder pursuant to state law. Id. at *5. Prior to retrial the parties reached an 21 agreement where petitioner would be sentenced for second-degree murder and the prosecution 22 would dismiss the premeditation allegation. Id. Gibson was sentenced to 15 years to life in 23 prison. Id. 24 Petitioner filed a prior federal habeas action in this Court. Gibson v. Lizarraga, No. 14-cv- 25 3717 JD. That petition was denied on the merits on January 26, 2016. Docket No. 15 in No. 14- 26 cv-3717 JD. The Ninth Circuit denied a certificate of appealability on July 26, 2016. Docket No. 27 19 in No. 14-cv-3717 JD. 28 DISCUSSION 1 2 “A claim presented in a second or successive habeas corpus application under section 3 2254 that was not presented in a prior application shall be dismissed . . .” 28 U.S.C. § 2244(b)(2). 4 This is the case unless, 5 6 7 8 9 10 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2). United States District Court Northern District of California 11 “Before a second or successive application permitted by this section is filed in the district 12 court, the applicant shall move in the appropriate court of appeals for an order authorizing the 13 district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). 14 Petitioner presents claims regarding the same underlying conviction that was reviewed in 15 the prior petition. While the prior petition concerned the trial and this petition presents claims 16 regarding the subsequent agreement, both petitions involve the same conviction. Yet, petitioner 17 has not provided evidence that the Ninth Circuit has authorized a successive petition. The petition 18 is dismissed but petitioner may refile the petition if he receives permission from the Ninth Circuit. 19 CONCLUSION 20 1. The petition is DISMISSED for the reasons set forth above. A certificate of 21 appealability is DENIED. 22 2. The Clerk shall close this action. 23 IT IS SO ORDERED. 24 Dated: November 7, 2017 25 26 27 JAMES DONATO United States District Judge 28 2 1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 DAN GIBSON, Case No. 17-cv-05317-JD Plaintiff, 5 v. CERTIFICATE OF SERVICE 6 7 JOE LIZARRAGA, Defendant. 8 9 10 I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. United States District Court Northern District of California 11 12 13 14 15 That on November 7, 2017, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office. 16 17 18 Dan Gibson AK2511 P.O. Box 409060 Mule Creek, CA 95640 19 20 21 Dated: November 7, 2017 22 23 Susan Y. Soong Clerk, United States District Court 24 25 26 27 By:________________________ LISA R. CLARK, Deputy Clerk to the Honorable JAMES DONATO 28 3

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