Ayers v. Berkebile et al

Filing 2

ORDER DISMISSING PETITION AND DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Susan P. Watters on 7/20/2015. Mailed to Ayers. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
TWAIN NEWMAN AYERS,
Petitioner,
ORDER DISMISSING PETITION
AND DENYING CERTIFICATE OF
APPEALABILITY

vs.
DAVID BERKEBILE, et al.,
Respondents.

Petitioner Twain Newman Ayers, a state prisoner proceeding pro se, has
previously filed multiple habeas petitions in this Court under 28 U.S.C. § 2254.
On July 13, 2015, he filed yet 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 concerning that judgment
to conclusion in this Court. See Ayers v. Laughlin, et al., Nos. CV 14-110 and 14164-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). He must present his
1

allegations of "actual innocence" and "newly discovered evidence" as well as the
underlying claims for relief to the Court of Appeals. This Court does not have
jurisdiction to hear either his claims against the judgments or his arguments as to
why he should be able to proceed with a new petition. Burton v. Stewart, 549 U.S.
147, 149 (2007) (per curiam).
Ayers 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~~ofJuly, 2015.
Susan P. Watters
United States District Court
2