Combs v. Swarthout

Filing 9

ORDER DISMISSING PETITION AS SECOND OR SUCCESSIVE AND DENYING CERTIFICATE OF APPEALABILITY by Judge Phyllis J. Hamilton denying as moot 8 Motion to Appoint Counsel (Attachments: # 1 Certificate/Proof of Service) (nah, COURT STAFF) (Filed on 8/30/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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DAVID COMBS,

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For the Northern District of California

United States District Court

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No. C 10-5549 PJH (PR)

Petitioner,

ORDER DISMISSING
PETITION AS SECOND OR
SUCCESSIVE AND DENYING
CERTIFICATE OF
APPEALABILITY

vs.
GARY SWARTHOUT, Warden,
Respondent.
/

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This is a habeas case filed pro se by a state prisoner. It is directed to petitioner’s

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2002 conviction for inflicting corporal injury on a spouse, felony false imprisonment, first-

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degree burglary, and assault with a deadly weapon. Petitioner had a previous habeas

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case in this court, Combs v. Carey, C 06-0186 MMC (PR), directed to the same

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conviction. It was denied on the merits in an order entered on October 30, 2008, and the

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denial was affirmed on appeal. Petitioner’s petition for a writ of certiorari in that case is

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pending in the United States Supreme Court.

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A habeas petitioner may not file a second or successive petition unless he or she

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first obtains from the appropriate United States Court of Appeals an order authorizing the

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filing. See 28 U.S.C. § 2244(b)(3)(A). Petitioner has not obtained such an order from

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the Ninth Circuit. And that he has a certiorari petition is pending in the Supreme Court

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does not prevent this petition from being second or successive. See Ochoa v. Sirmons,

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485 F.3d 538, 540-41 (10th Cir. 2000) (holding that second petition is still barred as

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second or successive even if decision in first habeas case is pending on appeal).

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The petition is accordingly DISMISSED without prejudice to filing a new petition if

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petitioner obtains the necessary order. The pending motion for appointment of counsel

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(document number 8 on the docket) is DENIED as moot.

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Because reasonable jurists would not find the court’s ruling debatable or wrong, a

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certificate of appealability is DENIED. See Rule 11(a), Rules Governing § 2254 Cases,

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28 U.S.C. foll. § 2254; see also 28 U.S.C. § 2253(c) (COA requirement); Slack v.

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McDaniel, 529 U.S. 473, 483 (2000) (standard). Petitioner is advised that he may not

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appeal the denial of a COA, but he may ask the court of appeals to issue a COA under

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Rule 22 of the Federal Rules of Appellate Procedure. See Rule 11(a), Rules Governing

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§ 2254 Cases.
The clerk shall close the file.

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For the Northern District of California

United States District Court

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IT IS SO ORDERED.

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Dated: August 30, 2011.
PHYLLIS J. HAMILTON
United States District Judge

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P:\PRO-SE\PJH\HC.10\COMBS5549.DSM.wpd

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