Rodgers v. Superior Court of San Diego

Filing 2

ORDER construcing petition as one filed pursuant to 28 U.S.C. § 2254 and dismissing petition as successive pursuant to 28 U.S.C. § 2244(b)(3)(A) Gatekeeper Provision. The Court DISMISSES this action without prejudice to Petitioner filing a petition in this court if he obtains the necessary order from the Ninth Circuit Court of Appeals. Signed by Judge Larry Alan Burns on 1/11/17.(All non-registered users served via U.S. Mail Service)(blank application to file Second or Successive Petition mailed to petitioner)(kas)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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FLOYD ANTHONY RODGERS,

Case No.: 16cv3130 LAB (BLM)

Petitioner,

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v.

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ORDER: (1) CONSTRUING
PETITION AS ONE FILED
PURSUANT TO 28 U.S.C. § 2254; and
(2) DISMISSING PETITION AS
SUCCESSIVE PURUSANT TO 28
U.S.C. § 2244(b)(3)(A) GATEKEEPER
PROVISION

SUPERIOR COURT OF SAN DIEGO,

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Respondent.

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Petitioner, a state prisoner proceed in pro se, has submitted a Petition for Writ of

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Habeas Corpus pursuant to 28 U.S.C. § 2241. He has not paid the $5.00 filing fee and

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has not moved to proceed in forma pauperis. The Court does not rule on Petitioner’s in

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forma pauperis status because this case is summarily dismissed pursuant to 28 U.S.C.

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§ 2244(b)(3)(A) as indicated below.

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Although Petitioner filed this action pursuant to 28 U.S.C. § 2241, he is a state

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prisoner attacking the validity of a state court conviction and sentence imposed by the

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state of California. Therefore, Petitioner may not proceed under section 2241, but may

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only proceed with a habeas action in federal court under 28 U.S.C. § 2254. White v.

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Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) (holding that section 2254 is the proper

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jurisdictional basis for a habeas petition brought by an individual “in custody pursuant to
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16cv3130 LAB (BLM)

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a state court judgment”). Section 2254 is properly understood as “in effect

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implement[ing] the general grant of habeas corpus authority found in § 2241 as long as

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the person is in custody pursuant to the judgment of a state court, and not in state custody

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for some other reason, such as pre-conviction custody, custody awaiting extradition, or

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other forms of custody that are possible without a conviction.” [citations omitted.] Id. at

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1006 (quoting Walker v. O’Brien, 216 F.3d 626, 633 (7th Cir. 2000) (emphasis in

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original). Accordingly, the Court CONSTRUES the Petition as one filed pursuant to 28

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U.S.C. § 2254.1

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PETITION BARRED BY GATEKEEPER PROVISION

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The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner

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has submitted to this Court challenging his November 22, 2002 conviction in San Diego

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Superior Court case No. SCS 163874. On June 6, 2006, Petitioner filed in this Court a

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Petition for Writ of Habeas Corpus in case No. 06cv1348 L (POR). In that petition,

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Petitioner challenged his conviction in San Diego Superior Court case No. SCS 163874

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as well. On March 8, 2007, this Court granted a motion to dismiss on the grounds that

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the petition was untimely. (See Order filed March 8, 2007 in case No. 06cv1348 L

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(POR) [Doc. No. 18].) Petitioner did not appeal that determination.

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Petitioner is now seeking to challenge the same conviction he challenged in his

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prior federal habeas petition. Unless a petitioner shows he or she has obtained an Order

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from the appropriate court of appeals authorizing the district court to consider a

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successive petition, the petition may not be filed in the district court. See 28 U.S.C.

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§ 2244(b)(3)(A); McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding that

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dismissal for failure to comply with one-year statute of limitations renders subsequent

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petitions challenging the same conviction or sentence “second or successive” under

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From the Petition, it appears Petitioner is a mentally disordered offender housed at Atascadero State
Hospital, and may be under civil commitment. A petition pursuant to 28 U.S.C. § 2241 would be the
appropriate method by which to challenge his civil commitment, but Petitioner challenges his criminal
sentence, not his civil commitment, in his Petition.
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§ 2244(b)). Here, there is no indication the Ninth Circuit Court of Appeals has granted

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Petitioner leave to file a successive petition.

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CONCLUSION
Because there is no indication Petitioner has obtained permission from the Ninth

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Circuit Court of Appeals to file a successive petition, this Court cannot consider his

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Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner

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filing a petition in this court if he obtains the necessary order from the Ninth Circuit

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Court of Appeals. The Clerk of Court is directed to mail Petitioner a blank Application

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to File Second or Successive Petition together with a copy of this Order.

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IT IS SO ORDERED

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Dated: January 11, 2017

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_________________________________

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Hon. Larry Alan Burns

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United States District Judge

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