Opinion
Case No. EDCV 16-1772-CAS (JPR)
08-25-2016
LEE WENDELL RIELS, Petitioner, v. DANIEL PARAMO, Warden, Respondent.
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE AND ADMINISTRATIVELY CLOSING CASE
On August 18, 2016, Petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging the 36-years-to-life prison term imposed upon him in 1995 following his conviction for robbery with use of a deadly weapon. (Pet. at 2 (listing "[c]onviction on which the petition is based").) This is not Petitioner's first federal habeas petition, however. On December 13, 1999, the Court denied as untimely his second federal petition challenging the same conviction and sentence. See Riels v. Small, No. EDCV 99-115-RT (RZ) (C.D. Cal. Dec. 13, 1999) (order accepting magistrate judge's report and recommendation). The denial of a habeas petition as untimely constitutes a decision on the merits. See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (holding that dismissal of habeas petition as untimely constitutes disposition on merits and that later petition challenging same conviction would be second or successive).
Petitioner's first federal petition was dismissed without prejudice because he had not yet exhausted his state remedies. See Riels v. Prunty, No. EDCV 97-0226-RT (RZ) (C.D. Cal. May 13, 1998) (order accepting magistrate judge's report and recommendation). His third federal petition was summarily dismissed because he had not obtained permission from the Ninth Circuit Court of Appeals to file a second or successive petition. See Riels v. Pliler, No. EDCV 02-1382-LGB (RZ) (C.D. Cal. Jan. 13, 2003) (order summarily dismissing petition).
The Antiterrorism and Effective Death Penalty Act provides:
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the
exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b).
(3)(A) 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.
The pending Petition is successive within the meaning of § 2244(b) because it challenges the same conviction as the petition in Small (and in Pliler). Under § 2244(b), then, Petitioner was required to secure an order from the Ninth Circuit authorizing the filing of this successive Petition before he filed it. See Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam). The Court's review of the Ninth Circuit's docket indicates that the last time Petitioner asked the Ninth Circuit for permission to file a successive petition was in 2007, and the court denied his request a few months later. See Riels v. Horel, No. 07-75073 (9th Cir. Mar. 11, 2008) (order denying request for leave to file successive petition).
The Petition is therefore SUMMARILY DISMISSED without prejudice to its refiling should Petitioner obtain the necessary permission from the Ninth Circuit; the Clerk is directed to administratively close this case. See R. 4, Rs. Governing § 2254 Petitions in U.S. Dist. Cts. ("If it plainly appears . . . that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition."). DATED: August 25, 2016
Ninth Circuit Rule 22-3(a) authorizes a judge to "refer" a habeas petition to the Ninth Circuit when it was "mistakenly" filed in district court, but nothing about Petitioner's latest Petition indicates that he intended to file it in the Ninth Circuit. Accordingly, the Court declines to refer or transfer the Petition to the Ninth Circuit. --------
/s/_________
CHRISTINA A. SNYDER
U.S. DISTRICT JUDGE Presented by: JEAN ROSENBLUTH
Jean Rosenbluth
U.S. Magistrate Judge