Hawkins v. Lehman

Full title: DAVID A. HAWKINS, Petitioner, v. JOSEPH LEHMAN, Respondent

Court: United States District Court, W.D. Washington, at Tacoma

Date published: Jan 23, 2003

Case No. C02-5568 FDB (W.D. Wash. Jan. 23, 2003)

Opinion

Case No. C02-5568 FDB.

January 23, 2003

REPORT AND RECOMMENDATION

J. KELLEY ARNOLD, United States Magistrate Judge

Petitioner is a state prisoner currently incarcerated at the Washington Correction Center in Shelton, Washington. Petitioner seeks habeas relief under 28 U.S.C. § 2254 challenging his 1987, Lewis County conviction and sentence for murder in the first degree.

The matter is before the court on respondent's motion to dismiss the petition as an unauthorized second or successive petition (Doc. 12) and petitioner's letter, filed in response, indicating he would like to "remove my case from the docket of the court and of the record of the court, for I do not wish to proceed with the action since I did not get approval from the Ninth Circuit," (Doc. 13).

After a careful review of the record, the undersigned submits the following report and recommends that the Court deny the petition for writ of habeas corpus as a second or successive petition.

DISCUSSION

The Antiterrorism and Effective Death Penalty Act of 1996, which was signed into law on April 24, 1996, section 2244(b)(3)(A) of the Act, states:

Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.

In this case, petitioner previously filed two petitions for habeas corpus. The first petition, filed in 1991, was dismissed with prejudice and was affirmed by the Ninth Circuit Court of Appeals. See U.S. District Court for the W.D. of Washington Cause No. C91-5415 and the 9^th Circuit's Cause No. 92-36565. The second petition for writ of habeas corpus was filed in 1994 and was similarly dismissed with prejudice.

When the instant matter was filed, petitioner simultaneously filed a request for authorization from the 9^th Circuit. On December 13, 2002, a panel of the Court of Appeals denied petitioner's request to file a second or successive petition with the court.

CONCLUSION

Based on the foregoing, the Court should deny and dismiss the petition for writ of habeas corpus.