Mitchell v. CDCR Director et al

Filing 3

ORDER: Summarily Dismissing Successive Petition Pursuant to 28 U.S.C. 2244(b)(3)(A) Gatekeeper Provision; (2) Denying Request to Proceed In Forma Pauperis as Moot; and (3) Declining to Issue Certificate of Appealability (ECF Nos. #1 , #2 ). Because there is no indication that the Ninth Circuit Court of Appeals has granted Petitioner leave to file a second or successive petition, this Court cannot consider the Petition (ECF No. #1 ). Accordingly, the Court DISMISSES the instant Petition WITHOUT PREJUDICE to Petitioner filing a petition in this Court if he obtains the necessary order from the Ninth Circuit Court of Appeals and DENIES Petitioner's IFP Motion (ECF No. #2 ) as moot. The Court further DECLINES to issue a COA. Signed by Judge Janis L. Sammartino on 7/15/2021. (All non-registered users served via U.S. Mail Service, Petitioner mailed a blank Ninth Circuit Application for Leave to File a Second or Successive Petition Under 28 U.S.C. 2254 together with a copy of this Order.) (tcf)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KENYATTA QUINN MITCHELL,

Case No.: 21-CV-1261 JLS (MDD)

Petitioner,

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v.

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ORDER: (1) SUMMARILY
DISMISSING SUCCESSIVE
PETITION PURSUANT TO
28 U.S.C. § 2244(b)(3)(A)
GATEKEEPER PROVISION;
(2) DENYING REQUEST TO
PROCEED IN FORMA PAUPERIS
AS MOOT; AND (3) DECLINING
TO ISSUE CERTIFICATE OF
APPEALABILITY

CDCR DIRECTOR, et al.,
Respondents.

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(ECF Nos. 1, 2)

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Petitioner Kenyatta Quinn Mitchell (“Petitioner”), a state prisoner proceeding pro

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se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 that

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challenges his 2016 conviction in San Diego County Superior Court, case number

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SCN362476, for which he was sentenced to 17 years. See ECF No. 1 (“Pet.”) at 1.

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Petitioner has also filed a request to proceed in forma pauperis (“IFP”) (“IFP Mot.,” ECF

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No. 2), which the Court DENIES AS MOOT because this case is summarily dismissed

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pursuant to 28 U.S.C. § 2244(b)(3)(A), as discussed below.

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21-CV-1261 JLS (MDD)

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PETITION BARRED BY 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION

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Upon review, the instant Petition is not the first Petition for a Writ of Habeas Corpus

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Petitioner has submitted to this Court challenging his 2016 conviction and sentence in San

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Diego County Superior Court, case number SCN362476. On April 6, 2018, Petitioner filed

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in this Court a Petition for a Writ of Habeas Corpus challenging his 2016 conviction and

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sentence of 17 years in San Diego Superior Court, case number SCN362476, of which the

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Court takes judicial notice. See ECF No. 1 in Civil Case No. 18-CV-697 WQH (BLM)

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(S.D. Cal. filed Apr. 6, 2018); see also United States v. Wilson, 631 F.2d 118, 119 (9th Cir.

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1980) (“[A] court may take judicial notice of its own records in other cases, as well as the

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records of an inferior court in other cases.”). On January 10, 2019, that petition was denied

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on the merits. See ECF No. 30 in Civil Case No. 18-CV-697 WQH (BLM). On December

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23, 2019, the Ninth Circuit Court of Appeals denied Petitioner’s request for a certificate of

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appealability. See Mitchell v. Dep’t of Corr. & Rehab., Case No. 19-55108, 2019 WL

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7756435 (9th Cir. Dec. 23, 2019).

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In the instant Petition, Petitioner again seeks to challenge this same 2016 conviction

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and sentence. See Pet. at 1. Petitioner acknowledges that this is not his first federal petition

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for a writ of habeas corpus challenging his 2016 conviction in San Diego Superior Court,

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case number SCN362476, and acknowledges the prior federal petition was denied on the

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merits. See id. at 5, 26. Petitioner also indicates that one or more of the same issues

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presented in the instant Petition were raised in the prior federal petition. Id. However,

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“[b]efore a second or successive application permitted by this section is filed in the district

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court, the applicant shall move in the appropriate court of appeals for an order authorizing

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the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A); see also Burton

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v. Stewart, 549 U.S. 147, 153 (2007) (noting that a petition is “second or successive” where

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the petitioner challenges “the same custody imposed by the same judgment of a state court”

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as in a prior petition).

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Even were Petitioner able to demonstrate that his Petition falls within the statutory

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provisions allowing for permission to file a second or successive habeas petition, see 28
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21-CV-1261 JLS (MDD)

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U.S.C. § 2244(b)(2)(A)-(B), Petitioner must still first obtain authorization from the Ninth

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Circuit Court of Appeals to file a petition in this Court. See 28 U.S.C. § 2244(b)(3)(A);

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see also Morales v. Sherman, 949 F.3d 474, 476 (9th Cir. 2020) (per curiam) (recognizing

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that 28 U.S.C. § 2244(b)(3)(A) is “a provision that bars district courts from entertaining a

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second or successive petition unless its filing has first been authorized by the court of

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appeals”). In the instant case, Petitioner indicates he has not obtained permission from the

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Ninth Circuit Court of Appeals to file a second or successive petition, see Pet. at 5, 26, and

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the Court’s review of the Ninth Circuit’s electronic docket similarly fails to reflect that

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Petitioner has sought or obtained such permission. Accordingly, this Court cannot consider

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the instant Petition and DISMISSES it WITHOUT PREJUDICE.

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CERTIFICATE OF APPEALABILITY

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A certificate of appealability (“COA”) is required to appeal to the court of appeals

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“the final order in a habeas corpus proceeding in which the detention complained of arises

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out of process issued by a State court” and is warranted “only if the applicant has made a

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substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A) &

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(c)(2). “When the district court denies a habeas petition on procedural grounds without

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reaching the prisoner’s underlying constitutional claim, a COA should issue when the

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prisoner shows, at least, that jurists of reason would find it debatable whether the petition

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states a valid claim of the denial of a constitutional right and that jurists of reason would

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find it debatable whether the district court was correct in its procedural ruling.” Slack v.

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McDaniel, 529 U.S. 473, 484 (2000).

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In the instant case, because Petitioner previously filed a petition challenging his 2016

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conviction in case number SCN362476, which was denied on the merits, and there is no

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indication Petitioner has received permission from the Ninth Circuit to file a second or

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successive petition, the Court is not persuaded that Petitioner has shown that “jurists of

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reason would find it debatable whether the district court was correct” in dismissing the

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instant petition for lack of authorization. See 28 U.S.C. § 2244(b)(3)(A); id. § 2253(c);

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21-CV-1261 JLS (MDD)

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Burton, 549 U.S. at 153; Slack, 529 U.S. at 484. Accordingly, the Court DECLINES to

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issue a COA.

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CONCLUSION

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Because there is no indication that the Ninth Circuit Court of Appeals has granted

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Petitioner leave to file a second or successive petition, this Court cannot consider the

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Petition (ECF No. 1).

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WITHOUT PREJUDICE to Petitioner filing a petition in this Court if he obtains the

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necessary order from the Ninth Circuit Court of Appeals and DENIES Petitioner’s IFP

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Motion (ECF No. 2) as moot. The Court further DECLINES to issue a COA.

Accordingly, the Court DISMISSES the instant Petition

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The Court DIRECTS the Clerk of the Court to send Petitioner a blank Ninth Circuit

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Application for Leave to File a Second or Successive Petition Under 28 U.S.C. § 2254

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together with a copy of this Order.

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IT IS SO ORDERED.
Dated: July 15, 2021

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21-CV-1261 JLS (MDD)