Summary
noting a previous adjudication of a motion for a COA after habeas relief denied
Summary of this case from Coleman v. U.S.Opinion
No. C 02-0838 SI
June 17, 2002
JUDGMENT
This action has been dismissed as a second or successive habeas petition. Accordingly, judgment is entered in favor of respondent.
ORDER DENYING RULE 60 MOTION AND DISMISSING CASE
The court is in receipt of petitioner's filing entitled "Motion to Set Aside Void Judgment." After careful consideration of all papers submitted, petitioner's motion is DENIED, and this case is DISMISSED.
BACKGROUND
On April 12, 1995, petitioner filed a petition for writ of habeas corpus (C-95-1248-SI) challenging his conviction for driving under the influence of alcohol and not wearing a seat belt. This Court issued an Order of Dismissal with Leave to Amend on August 2, 1996. Petitioner filed his amended petition on September 6, 1996, challenging his conviction on several grounds: (1) denial of right to counsel; (2) denial of right to speedy trial; (3) denial of effective assistance of counsel; and (4) abuse of process, conspiracy and fraud. This Court denied the petition on May 14, 1997. Petitioner moved for a certificate of appealability, which this Court denied on May 30, 1997. Petitioner then requested a Certificate of Probable Cause from the Ninth Circuit. Resp.'s Ex. 2. The Ninth Circuit denied this request on October 24, 1997, and denied petitioner's subsequent request for reconsideration of the order.
California Vehicle Code §§ 23152a, 23152b and 27315d.
Petitioner also filed a complaint on May 15, 1995 alleging civil rights violations under 28 U.S.C. § 1983 relating to this same arrest and conviction for driving under the influence. See C-95-1613-SI. This Court dismissed petitioner's complaint, because petitioner failed to show that his state conviction had been determined to be wrongful. Petitioner appealed to the Ninth Circuit. The Ninth Circuit affirmed this Court's order of dismissal on May 6, 1996. Ptr.'s Mot. to Set Aside a Void J. (hereinafter "Ptr.'s Mot."), Ex. J.
Under the rule of Heck v. Humphrey, 512 U.S. 477, 486-87 (1994), a cause of action for damages under § 1983 for a wrongful conviction or sentence or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid is barred unless that conviction or sentence has been to determined to be wrongful.
In this action, his third federal challenge to his conviction, petitioner seeks to have the judgment entered by the Fremont Municipal Court set aside as void pursuant to Rule 60(b)(4) of the Federal Rules of Civil Procedure, based on his allegation that the state court lacked jurisdiction. Ptr.'s Mot. at 1-2. Petitioner further alleges that several state officials conspired to deprive him of his civil rights. Id. at 2-3.
Petitioner has also filed a "Motion to Make Known to a United States Judge; To a State Attorney General; Misprision of a Felony," reiterating his allegations, to which both an opposition by the respondent, the State of California, and a reply by petitioner were filed. Respondent contends that petitioner's motion must be construed as a successive or second petition for writ of habeas corpus, since the Rule 60 motion actually attacks his state conviction; and as a successive petition, the motion is barred by 28 U.S.C. § 2244(b)(1). Resp's Oppo. to Ptr.'s Mot. at 2. Petitioner, on the other hand, argues that his claim was not a successive or second habeas petition, but simply a Rule 60(b)(4) motion requesting that this court set aside the Fremont Municipal Court judgment as void for lack of jurisdiction. Ptr.'s Reply at 1.
DISCUSSION
Respondent argues that petitioner's Rule 60(b) motion should be construed as a second or successive habeas application, since it challenges his underlying state conviction. Respondent further argues that because petitioner's motion is a new request for writ of habeas corpus, the motion is barred by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2244(b)(1).
Generally speaking, a petition is second or successive if it raises claims that were or could have been adjudicated on the merits in a previous petition. Cooper v. Calderon 274 F.3d 1270, 1273 (9th Cir. 2001). A motion bringing a new claim that could have been raised earlier may be treated as the functional equivalent of a second or successive petition for writ of habeas corpus. Cooper v. Calderon, 274 F.3d at 1274; Thompson v. Calderon, 151 F.3d 918, 921 (9th Cir. 1998) (where factual predicate for Rule 60(b) motion also states a claim for successive petition under 28 U.S.C. § 2244(b), Rule 60(b) motion to be treated as successive habeas petition); Felker v. Turpin, 101 F.3d 657, 661 (11th Cir. 1996) ("Rule 60(b) cannot be used to circumvent restraints on successive habeas petitions.").
Before a second or successive petition can be heard in the district court, § 2244(b)(3) requires a petitioner to move in the appropriate court of appeals for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). Absent an order from the court of appeals, § 2244(b)(1) requires that "a claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 2241(b)(1).
This Court finds that petitioner's motion is a second or successive petition for writ of habeas corpus, because, despite his assertion otherwise, petitioner attacks his state court conviction. Petitioner has not moved the Ninth Circuit for an order authorizing his application, and petitioner's request is thus barred by § 2244(b)(1).
If petitioner wishes to make a second or successive habeas application, he must file a "Motion for Order Authorizing District Court to Consider Second or Successive Petition Pursuant to 28 U.S.C. § 2244(b)(3)(A)" directly with the Ninth Circuit. Because this court has previously denied petitioner's request for writ of habeas corpus and certificate of appealability, until the Ninth Circuit issues such an order, any direct or implied request for a second petition for writ of habeas corpus is barred by § 2244(b)(1) and will be dismissed.
CONCLUSION
For the foregoing reasons, the motion is DENIED, and the case is DISMISSED. [Docket #19].