Opinion
Civil No. 05cv1708-BTM (NLS).
September 20, 2005
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
Petitioner, Stanley Ezell Singleton, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to this Court challenging his November 2000 convictions and sentences in San Diego Superior Court case Nos. SCD 142448, SCD 149494 and CR 142620.
PRIOR FEDERAL HABEAS PETITIONS DENIED ON THE MERITS
On January 6, 2003, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in Case No. 03cv0021-K (RBB). In that petition, Petitioner challenged his convictions and sentences in San Diego Superior Court case Nos. SCD 142448, SCD 1494994 and CR 142620. On February 5, 2004, this Court denied the petition on the merits. (See Order filed 2/5/04 in Case No. 03cv0021-K (RBB).) Petitioner appealed that determination. On May 26, 2004, the Ninth Circuit Court of Appeals denied Petitioner's request for a Certificate of Appealability and dismissed the appeal. (See Doc. No. 50 in Case No. 03cv0021-K (RBB).)
INSTANT PETITION BARRED BY GATEKEEPER PROVISION
Petitioner is now seeking to challenge the imposition of a parole term as part of the sentence imposed for the same convictions he challenged in his prior federal habeas petition. (Pet. at 1.) Petitioner acknowledges that he has filed a prior federal habeas petition challenging the same convictions and sentences. (Id. at 6-7.) He contends that he learned around December of 2003 that a period of parole would follow his release from custody, and states that he immediately filed a habeas petition in the San Diego Superior Court contending that he was never advised that he would have to serve a parole term after the expiration of his sentence. (Id.)Unless a petitioner shows he or she has obtained an order from the appropriate court of appeals authorizing the district court to consider a successive petition, the petition may not be filed in the district court. See 28 U.S.C. § 2244(b)(3)(A). Here, there is no indication the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive petition. The instant Petition is considered successive under section 2244(b)(3)(A) because Petitioner could have brought his claim in the prior petition, as the claim arose at the time of sentencing.Hill v. State of Alaska, 297 F.3d 895, 899 (9th Cir. 2002).
Petitioner cites Hill for the proposition that the new Petition is not successive because it raises a parole issue. (Pet. at 12.) The petitioner in Hill, after his initial federal habeas petition was denied on the merits, presented parole-related claims in two subsequent federal habeas petitions filed after he became eligible for parole, but both of those petitions were dismissed without reaching the merits of the claims. Hill, 297 F.3d at 899. Because the claim asserted inHill, that the parole release date had been calculated improperly, had arisen only after petitioner had become eligible for parole, and had arisen after his initial federal habeas petition challenging his conviction had been denied on the merits, the Court found that petitioner could not have raised the claim in any prior petition which had been denied on the merits.Id. Unlike Hill, however, Petitioner's claim that he was improperly sentenced to serve a parole term arose at the time of sentencing. The documents attached as exhibits to the Petition indicate that Petitioner was informed by the trial judge in open court during sentencing of the existence of a parole term with respect to case SCD 149494, and that he initialed the box on the change of plea form next to the statement that he understood that he could receive a parole term as to case SCD 142448. (See Pet. Ex. A at 3, 24.)
The form with Petitioner's initials is also attached as an exhibit to the previous federal petition filed in this Court. (See Doc. No. 1 in Case No. 03cv0021-K (RBB) at p. 48.)
To the extent Petitioner contends that his claim did not arise until August 8, 2004, the date prison authorities denied his inmate appeal on the subject (see Pet. at 13), his contention is without merit. Because the claim involves the imposition of a parole term by the trial court at the time of sentencing, which, as the state court observed in denying Petitioner's claim, was not only mandatory but was acknowledged as possible by Petitioner at the time of sentencing (see Pet. Ex. A at 2-3), there is simply no basis for a finding that Petitioner was unable to present the claim in a federal habeas petition until after exhaustion of prison administrative grievance procedures.
CONCLUSION
Because there is no indication Petitioner has obtained permission from the Ninth Circuit Court of Appeals to file a successive petition, this Court cannot consider his Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner filing a petition in this court if he obtains the necessary order from the Ninth Circuit Court of Appeals. (Attached for Petitioner's convenience is a blank Ninth Circuit Application for Leave to File Second or Successive Petition.)
IT IS SO ORDERED.