Opinion
CV 22-08242-PCT-JAT (JZB)
01-20-2023
Jasper Ian Webster, Petitioner, v. David Shinn, et al., Respondents.
ORDER
JAMES A. TEILBORG SENIOR UNITED STATES DISTRICT JUDGE
Petitioner Jasper Ian Webster, who is confined in the Arizona State Prison Complex-Florence, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. 1). Petitioner did not pay the filing fee or file an Application to Proceed In Forma Pauperis. The Court will dismiss the Petition without prejudice.
I. Petition
This is Petitioner's second petition for a writ of habeas corpus challenging his conviction in Mohave County Superior Court, case #CR 2011-01290, for two counts of sexual abuse, two counts of aggravated assault, five counts of sexual conduct with a minor, one count of molestation of a child. On January 10, 2018, Petitioner filed his first petition for a writ of habeas corpus regarding that conviction, Webster v. Ryan, 18-08003-PCT-JAT. In a June 6, 2019 Order (Doc. 31 in 22-08003-PCT-JAT), the Court denied the petition on the merits, and the Clerk of Court entered Judgment accordingly (Doc. 32 in 18-08003-PCT-JAT).
Under 28 U.S.C. § 2244, a petitioner may not file a second or successive § 2254 petition in this Court unless the petitioner has obtained certification from the Ninth Circuit Court of Appeals authorizing the Court to consider the second or successive § 2254 petition. 28 U.S.C. § 2244(b)(3)(A). The current Petition is a “second or successive” petition because (1) the original petition was dismissed with an adjudication on the merits, (2) the current Petition challenges the same judgment as the initial petition, and (3) the facts underlying the claims in the current Petition accrued by the time of the initial petition. Slack v. McDaniel, 529 U.S. 473, 485-486 (2000); Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018). Because the current Petition is a second or successive petition and because Petitioner has not presented a certification order from the Ninth Circuit authorizing the Court to consider it, the Court will dismiss the current Petition and this action. The Court, however, will dismiss the case without prejudice so Petitioner can seek certification from the Ninth Circuit to file a second or successive § 2254 petition.
In order to obtain certification from the Ninth Circuit, the Petitioner must demonstrate that the claim or claims “relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court,” or that “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence” and “the facts underlying the claim . . . would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2).
IT IS ORDERED:
(1) Petitioner's Petition for Writ of Habeas Corpus (Doc. 1) and this action are dismissed without prejudice, and the Clerk of Court must enter judgment accordingly.
(2) The Clerk of Court must provide Petitioner with a copy of the form recommended by the Ninth Circuit Court of Appeals for filing an Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255. .... .... ....
(3) Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the event Petitioner files an appeal, the Court declines to issue a certificate of appealability because reasonable jurists would not find the Court's procedural ruling debatable. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).