Sims v. Adams

Filing 29

ORDER by Judge Lucy H. Koh granting 19 Motion to Dismiss ; DENYING CERTIFICATE OF APPEALABILITY (Attachments: # 1 certificate of mailing) (mpb, COURT STAFF) (Filed on 9/29/2011)

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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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STANLEY SIMS, JR.,
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Petitioner,
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vs.
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D.G. ADAMS, Warden,
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Respondent.
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No. C 10-2872 LHK (PR)
ORDER GRANTING
RESPONDENT’S MOTION TO
DISMISS AS SECOND OR
SUCCESSIVE; DENYING
CERTIFICATE OF
APPEALABILITY

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

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pursuant to 28 U.S.C. § 2254. The Court ordered Respondent to show cause why the petition

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should not be granted. Respondent filed a motion to dismiss the petition as a second or

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successive petition. Petitioner has filed an opposition, Respondent has filed a reply, and

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Petitioner has filed an opposition to Respondent’s reply. Based upon the papers submitted, the

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Court concludes that the petition is an unauthorized second or successive petition, GRANTS

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Respondent’s motion, and DISMISSES the instant petition.

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BACKGROUND

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In 2003, Petitioner was convicted in the San Francisco County Superior Court of assault

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with a deadly weapon. The trial court sentenced Petitioner to a 19-year prison term. Petitioner

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did not appeal. Petitioner later filed a state habeas petition, which was denied. Thereafter,

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Petitioner filed a federal habeas petition in 2006, which was dismissed as untimely. Petitioner

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did not appeal from that dismissal. Petitioner then filed another state habeas petition. On June
Order Granting Respondent’s Motion to Dismiss as Second or Successive; Denying Certificate of Appealability
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29, 2010, Petitioner filed the instant petition raising the following claims: (1) he received

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ineffective assistance of counsel because counsel failed to argue that a prior conviction was

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unlawful, and therefore, could not be applied to enhance Petitioner’s sentence, and (2) enhancing

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his sentence based on that prior conviction violated his 1979 plea bargain.

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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 unless the claims presented in the previous

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petition were denied for failure to exhaust. See 28 U.S.C. § 2244(b)(1); Babbitt v. Woodford,

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177 F.3d 744, 745-46 (9th Cir. 1999). Additionally, a district court must dismiss any new claims

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raised in a successive petition unless the petitioner received an order from the court of appeals

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authorizing the district court to consider the petition.

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Here, the instant petition challenges the same conviction and sentence as Petitioner’s

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2006 habeas action, Sims v. Veale, No. 06-4489 MJJ (N.D. Cal. 2007), which was dismissed as

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untimely on November 8, 2007. See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009)

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(recognizing that when a previous petition’s dismissal based on untimeliness constitutes a

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disposition on the merits). Petitioner has not presented an order from the Ninth Circuit Court of

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Appeals authorizing this Court to consider any new claims. Accordingly, this Court must

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dismiss the instant petition in its entirety. See 28 U.S.C. § 2244(b)(3)(A).

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CONCLUSION

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Respondent’s motion to dismiss the petition as second or successive is GRANTED. The

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instant habeas petition is DISMISSED without prejudice to refiling if Petitioner obtains the

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necessary order. The Clerk shall terminate any pending motions and close the file.

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Petitioner has not shown “ that jurists of reason would find it debatable whether the

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district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Accordingly, a certificate of appealability is DENIED.

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IT IS SO ORDERED.
Dated:

9/29/11
LUCY H. KOH
United States District Judge

Order Granting Respondent’s Motion to Dismiss as Second or Successive; Denying Certificate of Appealability
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