Automated Summary
Key Facts
The Court orders Floyd Scott to show cause why his 2019 habeas petition challenging his 2008 conviction should not be dismissed as second and successive. The 2011 petition was denied on the merits, and the 2019 petition must be dismissed unless the Ninth Circuit authorizes review.
Issues
The Court must determine if the instant habeas petition is second and successive to the 2011 Petition, thereby lacking jurisdiction under 28 U.S.C. § 2244(b)(3)(A). The Petition challenges the same 2008 conviction previously addressed in the 2011 Petition, which was denied on the merits and dismissed with prejudice in 2014.
Holdings
The court preliminarily determines that the instant habeas petition is second and successive to a prior petition challenging the same 2008 conviction. Under 28 U.S.C. § 2244(b), the court lacks jurisdiction to consider second or successive petitions without authorization from the Ninth Circuit. The petitioner has not provided evidence of such authorization, making the petition subject to dismissal unless the petitioner demonstrates it is not second and successive or voluntarily dismisses the action.
Remedies
- The Court warns that voluntarily dismissing the action may subject claims to the statute of limitations under 28 U.S.C. § 2244(d)(1). A Notice of Dismissal form is attached for this option.
- The Court orders Petitioner to respond no later than August 28, 2019 by either (1) filing a written response explaining the Petition is not a second and successive petition or showing Ninth Circuit authorization, or (2) voluntarily dismissing the action without prejudice. Failure to respond will result in dismissal without prejudice as a second and successive petition and/or for failure to prosecute.
Legal Principles
The court applied the doctrine of res judicata to dismiss the habeas corpus petition as second and successive under 28 U.S.C. § 2244(b)(1). This principle bars relitigation of claims that have already been adjudicated on the merits or require authorization from the court of appeals for subsequent petitions challenging the same conviction.
Precedent Name
- Burton v. Stewart
- McNabb v. Yates
- Cooper v. Calderon
- Goodrum v. Busby
Cited Statute
- United States Code
- Federal Rules of Civil Procedure
Judge Name
Kenly Kiya Kato
Passage Text
- Thus, the Court ORDERS Petitioner to respond no later than August 28, 2019 by electing one of the following options: 1. File a written response explaining the Petition is not a second and successive petition or showing that the Ninth Circuit has authorized review of this Petition... 2. Voluntarily dismiss this action without prejudice...
- On June 19, 2019, Floyd Scott ('Petitioner') constructively filed a 'Motion for Rule 60(b) Hearing' which the Court construes as a Petition for Writ of Habeas Corpus... The Petition appears subject to dismissal because it is second and successive.
- Here, the instant Petition challenges the same conviction that was challenged in the 2011 Petition. See Dkt. 2. Consequently, the instant Petition is second or successive to the 2011 Petition. As Petitioner has not presented any documentation indicating the Ninth Circuit has issued 'an order authorizing the district court to consider the application,' the Court lacks jurisdiction over the claims, and the instant Petition is subject to dismissal. 28 U.S.C. § 2244(b)(3)(A).