Opinion
5:21-937-DOC (MAR)
06-23-2021
Theodora Medley v. Kathleen Allison
CIVIL MINUTES - GENERAL
MARGO A. ROCCONI, UNITED STATES MAGISTRATE JUDGE
Proceedings: (In Chambers) ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED AS SECOND OR SUCCESSIVE, AND INSTEAD BE TRANSFERRED TO THE NINTH CIRCUIT PURSUANT TO 28 U.S.C. § 1631 FOR APPROPRIATE ACTION
On May 9, 2021, Theodora Medley (“Petitioner”), a state prisoner proceeding pro se, constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) under 28 U.S.C. § 2254 (“section 2254”), challenging her 2000 murder conviction. ECF Docket No. (“Dkt.”) 1.
Under the “mailbox rule, ” when a pro se prisoner gives prison authorities a pleading to mail to court, the court deems the pleading constructively “filed” on the date it is signed. Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010).
The Petition is subject to dismissal under section 2254(b)(1) because it appears to be second or successive. See Medley v. Runnels, 506 F.3d 857 (9th Cir. 2007) (en banc). The Court will not make a final determination regarding whether the Petition should be dismissed, however, without giving Petitioner an opportunity to address this issue.
The Petition also appears to be untimely and either partially or wholly unexhausted, but the Court does not reach these issues here because the Court does not have jurisdiction to rule on a second or successive petition. 28 U.S.C. § 2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 152-53 (2007). Similarly, the Court declines to rule on Petitioner's motion for a stay at this time.
A. AEDPA AND SECOND OR SUCCESSIVE PETITIONS
1. Applicable law
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) “creates a ‘gatekeeping' mechanism for the consideration of second or successive applications in district court.” Felker v. Turpin, 518 U.S. 651, 657 (1996). Under this procedure, “[a]n individual seeking to a file a ‘second or successive' application must move in the appropriate court of appeals for an order directing the district court to consider his application.” Stewart v. Martinez-Villareal, 523 U.S. 637, 641 (1998). Thereafter, the appellate court “may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of” AEDPA. 28 U.S.C. § 2244(b)(3)(C).
2. Analysis
Here, the instant Petition appears to be a second or successive petition because it challenges the same 2000 conviction Petitioner challenged in her first Petition for Writ of Habeas Corpus by a Person In State Custody (“2003 Petition”). See Medley, 506 F.3d; see also Medley v. Runnels, 552 U.S. 1316 (2007) (denying Petitioner's writ of certiorari). The instant Petition therefore appears to be second or successive to the 2003 Petition.
Petitioner has failed to identify or submit any documentation indicating the Ninth Circuit has granted Petitioner “proper authorization” to file a second or successive petition in district court. As such, this Court lacks the jurisdiction to address the Petition. 28 U.S.C. § 2244(b)(3)(A); see also Burton, 549 U.S. at 152-53.
B. TRANSFER IN THE INTEREST OF JUSTICE PURSUANT TO 28 U.S.C. § 1631
1. Applicable law
28 U.S.C. § 1631 (“section 1631”) governs the transfer of civil actions among federal courts to cure jurisdictional defects. “Transfer is appropriate under section 1631 if three conditions are satisfied: (1) the transferring court lacks jurisdiction; (2) the transferee court could have exercised jurisdiction at the time the action was filed; and (3) the transfer is in the interest of justice.” Real v. California, No. CV 18-2486 R (SS), 2018 WL 3219651, at *1 (C.D. Cal. June 28, 2018). To that end, “[i]t is widely recognized that ‘[w]hen a second or successive § 2254 or § 2255 claim is filed in the district court without the required authorization from [the court of appeals], the district court may transfer the matter to [the court of appeals] if it determines it is in the interest of justice to do so under § 1631, or it may dismiss the motion or petition for lack of jurisdiction.'” Id. (quoting In re Cline, 531 F.3d 1249, 1252-53 (10th Cir. 2008); see also Robinson v. Johnson, 313 F.3d 128, 139 (3rd Cir. 2002) (district court may either dismiss an unauthorized successive petition for lack of jurisdiction or transfer it to the circuit court pursuant to section 1631); Jones v. Braxton, 392 F.3d 683, 691 (4th Cir. 2004) (same); Benton v. Washington, 106 F.3d 162, 165 (7th Cir. 1996) (same).
“Normally transfer will be in the interest of justice because the dismissal of an action that could be brought elsewhere is ‘time consuming and justice-defeating.'” Cruz-Aguilera v. INS, 245 F.3d 1070, 1074 (9th Cir. 2001) (internal citations omitted) (quoting Goldlawr, Inc. v. Heiman, 369 U.S. 463, 467 (1962)). Factors to consider when deciding whether transferring a case is in the interest of justice include: “whether the failure to transfer would prejudice the litigant, whether the litigant filed the original action in good faith, and other equitable factors.” Id.; see also In re Cline, 531 F.3d at 1251 (“Factors considered in deciding whether a transfer is in the interest of justice include whether the claims would be time barred if filed anew in the proper forum, whether the claims alleged are likely to have merit, and whether the claims were filed in good faith or if, on the other hand, it was clear at the time of filing that the court lacked the requisite jurisdiction.” See Trujillo v. Williams, 465 F.3d 1210, 1223 n. 16 (10th Cir. 2006)).
2. Analysis
Here, failure to transfer could prejudice Petitioner because a dismissal may present or exacerbate timeliness issues. Moreover, Petitioner, who is proceeding pro se, has “[both a] mental disability and [a] learning disability” Dkt. 1 at 8-9. Petitioner is also currently involved in two (2) pro se civil rights actions before this Court. See Theodora Medley v. S. Pfitzer et al., Case No. EDCV 21-0545-DOC (MAR); Theodora Medley v. Christian F. Theirbach, et al., EDCV 21-0089-DOC (MAR). While a transfer appears to be in the interests of justice, before dismissing the Petition or acting on its own initiative to transfer the Petition, the Court will afford Petitioner an opportunity to present her position on this issue.
Accordingly, Petitioner is ORDERED to show cause in writing within twenty-eight (28) days why the Petition should not be dismissed for lack of jurisdiction, and instead be transferred to the Ninth Circuit pursuant to 28 U.S.C. § 1631. See Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (“When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.”) (citation omitted); see also Cruz-Aguilera, 245 F.3d at 1074 (section 1631 applies in habeas proceedings).
The Court will consider any of the following three (3) actions to be an appropriate response to this OSC:
(1) Petitioner shall provide the Court with a written response either requesting a transfer and addressing why a transfer is appropriate in this case or addressing why a transfer is not appropriate in this case;
(2) Petitioner shall show that the Ninth Circuit has authorized review of this Petition; or
(3) Petitioner shall voluntarily dismiss this action without prejudice. Petitioner may request a voluntary dismissal of this action pursuant to Federal Rule of Civil Procedure 41(a). The Clerk of Court has attached A Notice of Dismissal form. However, the Court warns any dismissed claims may be later subject to the statute of limitations, because “[a] 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court.” 28 U.S.C. § 2244(d)(1).
The Clerk is ordered to provide Petitioner with the Ninth Circuit Court of Appeals Form 12, which is the Ninth Circuit's form Application for Leave to File Second or Successive Petition, and the accompanying instructions.
Failure to respond to the Court's Order may result in the dismissal of the action as second or successive or result in a direct transfer to the Ninth Circuit Court of Appeals under 28 U.S.C. § 1631 by this Court.
IT IS SO ORDERED.