Opinion
Case No. LA CV 16-4673 SVW (JCG)
11-22-2016
BRUCE DAVID KOKLICH, Petitioner, v. DEAN BORDERS, Respondent.
ORDER SUMMARILY DISMISSING ACTION WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY
On June 27, 2016, petitioner Bruce Koklich ("Petitioner"), a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition"). [Dkt. No. 1.] Notably, it is his second federal petition challenging a 2003 state court conviction for second degree murder. (See Pet. at 2, 7.) Thus, the Court finds that the Petition is an unauthorized "second or successive" petition, and summarily dismisses this action without prejudice for lack of jurisdiction. See 28 U.S.C. 2244(b).
By way of background, Petitioner first challenged his conviction and sentence in 2009, with an initial Petition for Writ of Habeas Corpus and subsequent First Amended Petition for Writ of Habeas Corpus ("2009 Petition"). [See C.D. Cal. Case No. LA CV 09-1648 SVW (JCG), Dkt. Nos. 1, 8.] The 2009 Petition and accompanying request for certificate of appealability were denied. [Id., Dkt. Nos. 86, 94, 95.] Petitioner's subsequent request for a certificate of appealability to the Ninth Circuit was also denied. [Id., Dkt. No. 99.]
Now, in the instant Petition, Petitioner seeks to challenge the same 2003 conviction, (Pet. at 2), on the grounds that a previously unavailable argument regarding the "void for vagueness" doctrine - rooted in the Supreme Court's decision in Johnson v. United States, 135 S. Ct. 2551 (2015) - has been made retroactively available through another recent Supreme Court case, Welch v. United States, 136 S. Ct. 1257 (2016). [See Dkt. No. 1 at 5, 13.] Assuming arguendo that Johnson and Welch might impact a state court sentence, Petitioner has failed to obtain the Ninth Circuit's authorization to file a "second or successive" petition. See 28 U.S.C. 2244(b). Thus, the Petition is an unauthorized "second or successive" petition, and the Court must dismiss this action for lack of jurisdiction. See id.; Orona v. United States, 2016 WL 3435692, at *1 (9th Cir. June 22, 2016) (observing that a second or successive habeas petition based on the Supreme Court's ruling in Johnson "require[s] . . . an application in [the Ninth Circuit] seeking authorization"); United States v. Dennis, 2016 WL 3476847, at *2 (M.D. Fla. June 27, 2016) ("[Petitioner's] obtaining relief under Johnson and Welch starts with an application for leave to file a second or successive motion . . . which . . . she must file with the circuit court."). // // // // // //
While the petitioners in Orona and Dennis were federal prisoners subject to the prior authorization requirement of 28 U.S.C. § 2255(h), Petitioner, a California state prisoner, is subject to the parallel requirement found in 28 U.S.C. 2244(b)(3)(A). --------
Accordingly, IT IS ORDERED THAT this action be SUMMARILY DISMISSED WITHOUT PREJUDICE for lack of jurisdiction, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
IS FURTHER ORDERED that a certificate of appealability be DENIED because Petitioner has not shown that jurists of reason would find it debatable whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: November 22, 2016
/s/_________
HON. STEPHEN V. WILSON
UNITED STATES DISTRICT JUDGE