Opinion
CASE NO. 3:19-CV-05661-BHS-DWC
08-07-2019
EUGENE TREMBLE III, Petitioner, v. RON HAYNES, Respondent.
REPORT AND RECOMMENDATION Noting Date: August 23, 2019
The District Court has referred this action to United States Magistrate Judge David W. Christel. On July 19, 2019, Petitioner Eugene Tremble, III filed his federal habeas Petition, pursuant to 28 U.S.C. § 2254, challenging his 2011 Pierce County conviction for assault in the first degree. Dkt. 1. On July 31, 2019, Petitioner filed a Motion for Leave to Proceed In Forma Pauperis. Dkt. 4. After review of the Court's records, the Court concludes this Petition is second or successive and recommends the Petition be dismissed without prejudice.
I. Background
In 2011, Petitioner was convicted in the Pierce County Superior Court of one count of first degree assault. Dkt. 1-1. In 2015, Petitioner filed a habeas petition ("First Petition") in this Court seeking relief from the 2011 state conviction. See Tremble v. Gilbert, 3:15-cv-5841-RJB-DWC. In the First Petition, Petitioner alleged his trial counsel provided ineffective assistance, his rights under the Confrontation Clause were violated, the state failed to provide sufficient evidence to convict him, and the trial was not fair because of jury instruction errors and evidentiary errors. Id. The court considered the First Petition on the merits, denied the First Petition, and dismissed that case with prejudice. Id.
Petitioner now files this Petition ("Second Petition") alleging the sentence imposed in 2011 violated his Sixth Amendment rights. Dkt. 1-1.
II. Discussion
The Antiterrorism and Effective Death Penalty Act ("AEDPA") implemented a gatekeeper function, requiring that successive § 2254 petitions be dismissed unless they meet one of the exceptions outlined in 28 U.S.C. § 2244(b)(2). "The bar of successive petitions applies only to petitions adjudicated and denied on the merits in the previous federal habeas corpus proceeding." Turner v. Terhune, 78 Fed. App'x 29, 30 (9th Cir. 2003) (citing Steward v. Martinez-Villareal, 523 U.S. 637, 645 (1998)). "A disposition is 'on the merits' if the district court either considers and rejects the claims or determines that the underlying claim will not be considered by a federal court." McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing Howard v. Lewis, 905 F.3d 1318, 1322 (9th Cir. 1990). The Ninth Circuit also states "[a] habeas petition is second or successive only if it raises claims that were or could have been adjudicated on the merits." McNabb, 576 F.3d at 1029.
Petitioner filed his First Petition challenging the same 2011 Pierce County conviction challenged in the Second Petition. The court denied the First Petition "on the merits," finding Petitioner had withdrawn several grounds and concluding the state court's conclusion regarding the remaining grounds was not contrary to, or an unreasonable application of, clearly established federal law. See Tremble v. Gilbert, 3:15-cv-5841-RJB-DWC. Further, in the Second Petition, Petitioner alleges the state court imposed a sentence in 2011 that violated the Sixth Amendment. Dkt. 1. Petitioner was or could have been aware of the factual predicate of this claim when his conviction became final and could have raised this claim in his First Petition. The claim, therefore, could have been adjudicated on the merits in the First Petition. See Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (finding a claim was "second or successive" when the petitioner was aware of the factual predicate of the claim and could have raised the claim in his first petition).
As Petitioner's First Petition was denied on the merits and Petitioner was or could have been aware of the claim asserted in the Second Petition prior to filing the First Petition, the Second Petition is "second or successive."
Before a petitioner is allowed to file a second or successive petition, he must obtain an order from the Court of Appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3); Rule 9 of the Rules Governing Section 2254 Proceedings for the United States District Court; Ninth Circuit Rule 22-3; see also Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). A district court lacks jurisdiction to consider a second or successive petition in the absence of an order from the Ninth Circuit authorizing the district court to consider the petition. See Magwood v. Paterson, 561 U.S. 320, 331 (2010); Burton v. Stewart, 549 U.S. 147, 157 (2007). Here, there is no evidence Petitioner has received an order from the Ninth Circuit authorizing this Court to consider the Second Petition. Thus, the Court lacks jurisdiction to consider the Second Petition and it should be dismissed without prejudice. See Magwood, 561 U.S. at 331; Cooper, 274 F.3d at 1274.
III. Certificate of Appealability
A petitioner seeking post-conviction relief under 28 U.S.C. § 2254 may appeal a district court's dismissal of the federal habeas petition only after obtaining a certificate of appealability (COA) from a district or circuit judge. See 28 U.S.C. § 2253(c). "A certificate of appealability may issue . . . only if the [petitioner] has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). Petitioner satisfies this standard "by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack v. McDaniel, 529 U.S. 473, 484 (2000)).
Reasonable jurists would not find it debatable that the Second Petition should be dismissed for lack of jurisdiction. Accordingly, this Court concludes Petitioner is not entitled to a certificate of appealability with respect to the Second Petition.
IV. Conclusion
For the above stated reasons, the Court recommends the Second Petition (Dkt. 1-1) be dismissed without prejudice and the certificate of appealability be denied. The Court also recommends Petitioner's Motion for Leave to Proceed In Forma Pauperis (Dkt. 4) be denied.
If Petitioner wishes to file a second or successive petition in this Court, he must obtain an order from the Court of Appeals authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A); Rule 9 of the Rules Governing Section 2254 Proceedings for the United States District Court.
Pursuant to 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b), the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Failure to file objections will result in a waiver of those objections for purposes of de novo review by the district judge. See 28 U.S.C. § 636(b)(1)(C). Accommodating the time limit imposed by Rule 72(b), the Clerk is directed to set the matter for consideration on August 23, 2019, as noted in the caption.
Dated this 7th day of August, 2019.
/s/_________
David W. Christel
United States Magistrate Judge