Bell v. Swarthout

Filing 7

ORDER OF DISMISSAL. Signed by Judge Saundra Brown Armstrong on 9/30/2013. (Attachments: # 1 Certificate/Proof of Service)(ndr, COURT STAFF) (Filed on 9/30/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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RICHARD C. BELL,

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Petitioner,

ORDER OF DISMISSAL

v.
GARY SWARTHOUT, Warden,

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Respondent.

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No. C 12-05617 SBA (PR)

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This is a habeas action brought pro se by a state prisoner challenging a state court criminal

United States District Court
For the Northern District of California

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conviction. Petitioner, however, filed a prior action attacking the same judgment, Case No. C

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94-0298 EFL (PR). In his previous action, the Court denied Petitioner's petition for a writ of habeas

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corpus and issued judgment in favor of Respondent on November 17, 1995. Petitioner then filed a

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notice of appeal and a request for a certificate of probable cause to appeal.1 The Court denied

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Petitioner's request for a certificate of probable cause.

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On November 24, 1995, Petitioner filed a request for a certificate of probable cause in the

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Ninth Circuit Court of Appeals. On March 15, 1996, the Ninth Circuit denied his request for a

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certificate of probable cause and issued its mandate on March 22, 1996.

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On November 14, 1996, Petitioner filed a motion for reconsideration pursuant to Federal

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Rule of Civil Procedure 60(b). On December 17, 1996, the Court denied Petitioner's Rule 60(b)

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motion. On September 9, 1997, Petitioner filed another notice of appeal and request for a certificate

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of probable cause to appeal. On September 15, 1997, the Court denied Petitioner's request for a

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certificate of probable cause.

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On September 23, 1997, Petitioner filed another request for a certificate of probable cause in

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the Ninth Circuit. On December 17, 1997, the Ninth Circuit again denied his request for a certificate

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of probable cause and issued its mandate on December 23, 1997.

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Unless a circuit justice or judge issues a certificate of appealability (formerly known as a
certificate of probable cause to appeal), a petitioner may not take an appeal to the court of appeals
from: (A) the final order in a habeas corpus proceeding in which the detention complained of arises
out of process issued by a State court; or (B) the final order in a proceeding under 28 U.S.C. § 2255.
28 U.S.C. § 2253(c)(1).

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In the instant action, Petitioner did not file a habeas corpus petition form. Instead, he has

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filed yet another motion for reconsideration (Rule 60(b) motion) of the Court's denial of his

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previously-filed habeas petition. Petitioner did not include his previous action's case number, Case

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No. C 94-0298 EFL (PR), in the caption of the motion; therefore, it was opened as a new action.

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Petitioner has also filed an application to proceed in forma pauperis ("IFP"). Petitioner's

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application to proceed IFP (docket no. 3) is GRANTED.

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On August 22, 2013, the Clerk of the Court sent a notice to Petitioner informing him that his

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action could not go forward until he filed with the Court a habeas corpus petition form, completed in

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full, within twenty-eight days or his action would be dismissed. He was also provided a blank

United States District Court
For the Northern District of California

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habeas corpus petition form. To date, Petitioner has not filed a completed orm. Instead, on

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September 4, 2013, Petitioner filed a letter indicating that he intends to go forward on a motion to

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vacate the Court's judgment in his previous action, Case No. C 94-0298 EFL (PR), under Rule 60(b).

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DISCUSSION

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A district court must dismiss claims presented in a second or successive habeas petition

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challenging the same conviction and sentence raised in a pending petition. See 28 U.S.C.

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

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

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order from the court of appeals authorizing the district court to consider the petition. See 28 U.S.C.

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§ 2244(b)(3)(A).

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Here, although Petitioner has filed a motion to vacate under Rule 60(b) instead of a petition,

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his motion remains barred as second or successive. The United States Supreme Court has held that a

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Rule 60(b) motion that asserts a basis for relief from a state court's judgment of conviction, is, if not

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in substance a successive habeas petition, at least similar enough that failing to subject it to the same

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requirements would be inconsistent with the habeas statute; in short, labeling a filing as a Rule 60(b)

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motion does not avoid the rules for second or successive petitions. See Gonzalez v. Crosby, 545

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U.S. 524, 530-31 (2005).

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Accordingly, the Court finds that Petitioner's Rule 60(b) motion is second or successive. As

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mentioned above, 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 filing. See

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

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Therefore, the Rule 60(b) motion (docket no. 1) will not be considered, and this action is

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DISMISSED WITHOUT PREJUDICE to filing a new petition if Petitioner obtains the necessary

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authorization.

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The Clerk shall close the file, terminate all pending motions, and enter judgment in this
matter.

United States District Court
For the Northern District of California

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This Order terminates Docket Nos. 1 and 3.

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IT IS SO ORDERED.

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DATED:

_______________________________
SAUNDRA BROWN ARMSTRONG
United States District Judge

9/30/13

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