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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAN GIBSON,
Petitioner,

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ORDER OF DISMISSAL

v.
JOE LIZARRAGA,
Respondent.

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United States District Court
Northern District of California

Case No. 17-cv-05317-JD

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Petitioner, a California prisoner, has filed a pro se petition for a writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. Petitioner was convicted in Monterey County, which is in this

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district, so venue is proper here. See 28 U.S.C. § 2241(d). He has paid the filing fee.
BACKGROUND

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Petitioner was found guilty at a jury trial of killing his wife, but the jury was undecided if

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the murder was willful, premeditated, and deliberate. People v. Gibson, No. H037519, 2014 WL

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1278631, at *4-5 (Cal. Ct. App. March 28, 2014). The trial court ordered a retrial on the

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applicable degree of murder pursuant to state law. Id. at *5. Prior to retrial the parties reached an

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agreement where petitioner would be sentenced for second-degree murder and the prosecution

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would dismiss the premeditation allegation. Id. Gibson was sentenced to 15 years to life in

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prison. Id.

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Petitioner filed a prior federal habeas action in this Court. Gibson v. Lizarraga, No. 14-cv-

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3717 JD. That petition was denied on the merits on January 26, 2016. Docket No. 15 in No. 14-

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cv-3717 JD. The Ninth Circuit denied a certificate of appealability on July 26, 2016. Docket No.

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19 in No. 14-cv-3717 JD.

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DISCUSSION

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“A claim presented in a second or successive habeas corpus application under section

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2254 that was not presented in a prior application shall be dismissed . . .” 28 U.S.C. § 2244(b)(2).

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This is the case unless,

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(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

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“Before a second or successive application permitted by this section is filed in the district

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court, the applicant shall move in the appropriate court of appeals for an order authorizing the
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district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).

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Petitioner presents claims regarding the same underlying conviction that was reviewed in
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the prior petition. While the prior petition concerned the trial and this petition presents claims
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regarding the subsequent agreement, both petitions involve the same conviction. Yet, petitioner
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has not provided evidence that the Ninth Circuit has authorized a successive petition. The petition
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is dismissed but petitioner may refile the petition if he receives permission from the Ninth Circuit.
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CONCLUSION
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1. The petition is DISMISSED for the reasons set forth above. A certificate of
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appealability is DENIED.
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2. The Clerk shall close this action.
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IT IS SO ORDERED.
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Dated: November 7, 2017
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JAMES DONATO
United States District Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DAN GIBSON,

Case No. 17-cv-05317-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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JOE LIZARRAGA,
Defendant.

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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

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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.

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Dan Gibson
AK2511
P.O. Box 409060
Mule Creek, CA 95640

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Dated: November 7, 2017

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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