Bunyard v. Fisher

Filing 3

ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY, ***Civil Case Terminated. Signed by Judge Phyllis J. Hamilton on 9/16/15. (CERTIFICATE OF SERVICE ATTACHED)(napS, COURT STAFF) (Filed on 9/16/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN P. BUNYARD,

Case No. 15-cv-03785-PJH

Petitioner,
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v.

ORDER DISMISSING PETITION AND
DENYING CERTIFICATE OF
APPEALABILITY

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R. FISHER,
Respondent.

United States District Court
Northern District of California

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

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pursuant to 28 U.S.C. § 2254. He has paid the filing fee. The petition involves a

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conviction on August 22, 1995, in Santa Clara County Superior Court where petitioner

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was sentenced to 25 years to life in prison. Petitioner argues that his sentence violates

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the Eighth Amendment. However, court records indicate that petitioner filed a previous

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federal habeas petition regarding the same underlying conviction that was dismissed as

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untimely on March 25, 2004. See Bunyard v. Knowles, No. C 03-1280 PJH (PR).

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Petitioner filed two appeals to the Ninth Circuit that were denied. Thus, this is a

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successive petition.

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

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section 2254 that was not presented in a prior application shall be dismissed....” 28

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U.S.C. § 2244(b)(2). This is the case unless,
(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

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(B) (i) the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence;
and

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(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).
However, “[b]efore a second or successive application permitted by this section is

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filed in the district court, the applicant shall move in the appropriate court of appeals for

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an order authorizing the district court to consider the application.” 28 U.S.C. §

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2244(b)(3)(A). Therefore, petitioner's application must be dismissed to its refiling upon

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obtaining authorization from the Ninth Circuit.
CONCLUSION

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United States District Court
Northern District of California

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The petition is DISMISSED. Because reasonable jurists would not find the result

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here debatable, a certificate of appealability (“COA”) is DENIED. See Slack v. McDaniel,

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529 U.S. 473, 484-85 (2000) (standard for COA). The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: September 16, 2015

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________________________
PHYLLIS J. HAMILTON
United States District Judge

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\\CANDOAK\Data\Users\PJHALL\_psp\2015\2015_03785_Bunyard_v_Fisher_(PSP)\15-cv-03785-PJH-_dis_successive.docx

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JOHN P. BUNYARD,

Case No. 15-cv-03785-PJH

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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R. FISHER,
Defendant.

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United States District Court
Northern District of California

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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 17, 2015, 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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John P. Bunyard ID: J-75189
P.O. Box 96
Chowchilla, CA 93610

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Dated: September 17, 2015

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Susan Y. Soong
Clerk, United States District Court
By:________________________
Nichole Peric, Deputy Clerk to the
Honorable PHYLLIS J. HAMILTON

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