Boddie v. Grounds

Filing 8

ORDER DISMISSING CASE. Signed by Judge ARMSTRONG on 9/26/11. (lrc, COURT STAFF) (Filed on 9/30/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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No. C 10-1575 SBA (PR)

RODERICK BODDIE,

ORDER GRANTING RESPONDENT'S
MOTION TO DISMISS HABEAS
PETITION AS SECOND OR
SUCCESSIVE

Petitioner,
v.
RANDY GROUNDS, Acting Warden,
Respondent.

(Docket no. 5)

Petitioner, a state prisoner, filed the present pro se petition for writ of habeas corpus.

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For the Northern District of California

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United States District Court

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Before the Court is Respondent's motion to dismiss the petition as a second or successive

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petition, or, in the alternative, for failure to state a cognizable federal constitutional claim. Petitioner

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opposes the motion, and Respondent filed a reply to the opposition.

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The record shows that Petitioner has filed a previous petition for a writ of habeas corpus with

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this Court, challenging the same 1997 conviction and sentence. See Case No. C 00-4665 SBA (PR).

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On March 31, 2004, the Court denied his previous petition on the merits. Petitioner appealed, and

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the Ninth Circuit Court of Appeals affirmed the judgment on August 4, 2005. Petitioner then filed a

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petition for writ of certiorari in the United States Supreme Court, which was denied on February 27,

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2006.

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On April 13, 2010, Petitioner filed the present petition, in which he challenges the state

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court's denial of his 2009 state habeas petition claiming that he received an illegal sentence in 1997.

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(Pet. at 4, 6.)

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DISCUSSION
The Court finds the present petition is a second or successive petition attacking the same

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1997 conviction and sentence as Petitioner's prior federal habeas petition. A second or successive

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petition containing new claims may not be filed in the district court unless Petitioner first obtains

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from the United States Court of Appeals an order authorizing the district court to consider the

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petition. 28 U.S.C. § 2244(b)(3)(A). Petitioner has not done so.

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Furthermore, Petitioner's arguments in opposition to the motion to dismiss are without merit.

§ 2254 because he is a state prisoner being held "pursuant to the judgment of a State court," 28

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U.S.C. § 2254, and he is challenging his 1997 conviction on the grounds that his custody is

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unconstitutional. Petitioner cannot circumvent the bar against second or successive petitions by

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simply making a conclusory statement that he "does not need to first file for permission to file a

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second or successive petition in the appellate court." (Opp'n at 2.) Petitioner contends he is not

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subject to 28 U.S.C. § 2244(b) because the previous federal proceeding did not result in a decision

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on the merits of the claims presented in the present petition. (Id.) A district court must dismiss

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claims presented in a second or successive habeas petition challenging the same conviction and

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For the Northern District of California

The Court finds that Petitioner has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.

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United States District Court

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sentence unless the claims presented in the previous petition were denied for failure to exhaust. See

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28 U.S.C. § 2244(b)(1); Babbitt v. Woodford, 177 F.3d 744, 745-46 (9th Cir. 1999). Additionally, a

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district court must dismiss any new claims raised in a successive petition unless the petitioner

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received an order from the court of appeals authorizing the district court to consider the petition.

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See 28 U.S.C. § 2244(b)(2), (3). Here, Petitioner has neither showed that the new claims were

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previously denied for failure to exhaust, nor has he presented an order from the Ninth Circuit Court

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of Appeals authorizing this Court to consider any new claims.

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Petitioner also argues that he did not need authorization from the Ninth Circuit because "the

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events giving rise to the later [sic] application had not occurred until after the conclusion of the

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earlier habeas proceeding." (Opp'n at 2.) Even if those assertions were true, they would not bestow

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jurisdiction on this Court to review the current petition without authorization from the Ninth Circuit.

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See 28 U.S.C. § 2244(b)(3)(A). Such authorization is permitted only when the claim relies on a

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"new rule of constitutional law, made retroactive to cases on collateral review by the Supreme

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Court, that was previously unavailable," § 2244(b)(2)(A), or "the factual predicate for the claim

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could not have been discovered previously through the exercise of due diligence," §

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2244(b)(2)(B)(i). Section 2244(b)(2)(A) does not apply because Petitioner fails to claim that a "new

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rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court . . .

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was previously unavailable." Neither does section 2244(b)(2)(B)(i) apply, because the factual
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predicate for the new claim -- relating to the allegedly illegal 1997 sentence -- was known to

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Petitioner at the time of sentencing. Thus, the limitations on second or successive petitions clearly

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apply, and preclude this Court from addressing the current petition.

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Accordingly, Respondent's motion to dismiss is GRANTED, and this petition is

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DISMISSED without prejudice to filing a new habeas action if Petitioner obtains the necessary

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order.1

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CONCLUSION

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For the foregoing reasons, Respondent's motion to dismiss the petition as a second or

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successive petition (docket no. 5) is GRANTED. The petition is DISMISSED pursuant to 28 U.S.C.

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For the Northern District of California

United States District Court

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§ 2244(b).
The Clerk of the Court shall enter judgment in accordance with this Order, terminate all
pending motions, and close the file.

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This Order terminates Docket no. 5.

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IT IS SO ORDERED.

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DATED:

9/26/11
SAUNDRA BROWN ARMSTRONG
UNITED STATES DISTRICT JUDGE

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Because the Court has dismissed the present petition as a successive petition, it need not
address Respondent's alternative argument for dismissal.
G:\PRO-SE\SBA\HC.10\Boddie1575.grantMTD(successive).wpd

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF
CALIFORNIA

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BODDIE et al,
Case Number: CV10-01575 SBA

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CERTIFICATE OF SERVICE
v.
GROUNDS et al,
Defendant.

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For the Northern District of California

United States District Court

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Plaintiff,

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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.
That on September 30, 2011, 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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Roderick Boddie K-58959
Correctional Training Facility-Soledad
P.O. Box 689
Soledad, CA 93960-0689
Dated: September 30, 2011

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Richard W. Wieking, Clerk
By: LISA R CLARK, Deputy Clerk

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G:\PRO-SE\SBA\HC.10\Boddie1575.grantMTD(successive).wpd

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