Opinion
3:23-cv-1859-JO-MSB
11-29-2023
MATTHEW A. LAWRIE, Petitioner, v. PARTICK COVELLO, Warden, Respondent.
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
Honorable Jinsook Ohta, United States District Judge
Petitioner filed a Petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, along with a motion to proceed in forma pauperis (IFP), and a motion for appointment of counsel. ECF Nos. 1-3. For the reasons set forth below, the habeas petition is dismissed and the accompanying motions denied as moot.
Pursuant to 28 U.S.C. § 2244(b)(3)(A), habeas petitioners cannot bring a “second or successive application for the same relief they already requested without proper authorization. A federal habeas petition is “second” or “successive” if (1) the petitioner filed a previous challenge to a state judgment; (2) a federal court issued a decision on the merits regarding that challenge; and (3) the current petition makes “claims contesting the same custody imposed by the same judgment of a state court.” Burton v. Stewart, 549 U.S. 147, 153 (2007); see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing such a petition in a district court, the petitioner must obtain from the appellate court “an order authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Without this authorization from the appellate court, the district court is without jurisdiction to consider a second or successive petition. See Burton, 549 U.S. at 157.
Here, Petitioner seeks relief from the same conviction that he previously challenged before this Court twelve years ago. His instant habeas petition raises arguments concerning his conviction in San Diego County Superior Court Case No. SCN160404. ECF No. 1 at 1. Court records reflect Petitioner filed a previous habeas petition in 2010 challenging this same judgment of conviction in this court. See Lawrie v. Cate, No. 10-cv-1034-DMS-PCL (S.D. Cal.). The district court denied the earlier petition on the merits on October 5, 2011. See id., ECF No. 19. On October 22, 2012, the United States Court of Appeals for the Ninth Circuit denied a certificate of appealability. See id., ECF No. 21. Because Petitioner's previous petition challenging the same conviction received a ruling on the merits from the district court, the instant Petition is successive.Because there is no indication Petitioner has obtained permission from the Ninth Circuit Court of Appeals to file a successive petition, this Court lacks jurisdiction to consider the Petition and must dismiss it.
Petitioner filed another a petition for habeas corpus challenging the same conviction (SCN160404) on June 27, 2016. See Lawrie v. Kernan, No. 16-cv-1656-JAH-DHB (S.D. Cal.). That petition was also dismissed as successive. See id., ECF No. 40.
CONCLUSION
Accordingly, the Court DISMISSES this action without prejudice to Petitioner refiling after he obtains the necessary authorization from the Ninth Circuit Court of Appeals. The motion to proceed IFP (ECF No. 2) and motion for appointment of counsel (ECF No. 3) are DENIED as moot. Further, the Court finds no certificate of appealability is warranted because Petitioner has not shown “jurists of reason” could debate or differ on whether the instant Petition is successive. See Slack, 529 U.S. at 484.
IT IS SO ORDERED.