Opinion
Case No. 3:17-cv-00723-HDM-WGC
04-10-2018
PHILIP HUGHES, Petitioner, v. ISIDRO BACA, et al., Respondents.
ORDER
Petitioner Philip Hughes has submitted a § 2254 petition for a writ of habeas corpus and paid the filing fee (see ECF No. 1). The petition shall be dismissed as second and successive.
28 U.S.C. § 2244(3)(A) provides: "[b]efore 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." Where a petition has been dismissed with prejudice as untimely or because of procedural default, the dismissal constitutes a disposition on the merits and renders a subsequent petition second or successive for purposes of 28 U.S.C. § 2244. McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005).
Petitioner indicates on the face of his petition that he seeks to challenge the state judgment of conviction in case no. C176929 (ECF No. 2, p. 2). He also acknowledges in his petition that he previously filed case no. 2:10-cv-00805-KJD-VCF, in which he challenged the same state judgment of conviction. On September 17, 2014, this court denied the petition on the merits and denied a certificate of appealability (2:10-cv-00805-KJD-VCF, ECF Nos. 27, 28). This court denied petitioner's motion to alter or amend judgment, and the Ninth Circuit Court of Appeals denied a certificate of appealability (ECF Nos. 43, 46).
This petition, therefore, is a second or successive habeas corpus petition. Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 2005). Petitioner was required to obtain authorization from the Ninth Circuit Court of Appeals before he could proceed. 28 U.S.C. § 2244(b)(3). Petitioner indicates on the face of this petition that Ninth Circuit has not given him leave to file it. Accordingly, this petition shall be dismissed as second and successive. Reasonable jurists would not find this conclusion to be debatable or wrong, and the court will not issue a certificate of appealability.
IT IS THEREFORE ORDERED that the petition is DISMISSED as a successive petition.
IT IS FURTHER ORDERED that a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk shall ENTER JUDGMENT accordingly and close this case.
DATED: April 10, 2018.
/s/_________
HOWARD D. MCKIBBEN
UNITED STATES DISTRICT JUDGE