Ayers v. Berkebile et al

Filing 3

ORDER. Ayers's Petition 1 is DISMISSED; a certificate of appealability is DENIED. Signed by Judge Dana L. Christensen on 5/8/2015. Mailed to Ayers. (TAG, )

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
TWAIN NEWMAN AYERS,

MAY 0 8 2015
Clerk, U.S. District Court
District Of Montana
Missoula

Cause No. CV 15-34-BLG-DLC

Petitioner,
vs.

ORDER DISMISSING PETITION
AND DENYING CERTIFICATE OF
APPEALABILITY

DAVID BERKEBILE, et al.,
Respondents.

Petitioner Twain Newman Ayers, a state prisoner proceeding pro se, has
previously filed habeas petitions in this Court under 28 U.S.C. § 2254. On May 4,
2015, he filed another.
Ayers was convicted and sentenced in Dawson County on October 7, 2011,
for a fourth or subsequent offense of driving under the influence of alcohol. He
was convicted and sentenced in Yellowstone County on October 28, 2011, for
issuing a bad check. Regardless of which conviction he intends to challenge in the
instant petition, he has already litigated a habeas petition to conclusion in this
Court. See Ayers v. Laughlin, et al., Nos. CV 14-110 and 14-164-BLG-DLC (D.
Mont. judgment entered Jan. 21, 2015).
Ayers may file another petition only if and when he obtains leave to do so
from the Ninth Circuit Court of Appeals. 28 U.S.C. § 2244(b ). Ayers has not
obtained leave. This Court lacks jurisdiction to hear his claims. Burton v. Stewart,
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549 U.S. 147, 149 (2007) (per curlam).
As Ayers has repeatedly been advised, his claims are frivolous. He does not
make any showing that he was deprived of a constitutional right. In addition, this
Court plainly lacks jurisdiction under Burton. A certificate of appealability is not
warranted. 28 U.S.C. § 2253(c)(2).

Based on the foregoing, the Court enters the following:

ORDER
1. Ayers' s Petition (Doc. 1) is DISMISSED for lack of jurisdiction as an
unauthorized second or successive petition under 28 U.S.C. § 2254.
2. The Clerk of Court is directed to enter a judgment of dismissal.
3. A certificate of appealability is DENIED.
4. This case is CLOSED. Other than a notice of appeal, no action will be
taken on any further filings under this cause number.
~
DATED this~ day of May, 201

Dana L. Christensen, Chief Judge
United States District Court

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