Duchine v. People of the State of California

Northern District of California, cand-4:2015-cv-03529

ORDER DISMISSING SUCCESSIVE PETITION; DENYING CERTIFICATE OF APPEALABILITY. Signed by Magistrate Judge Kandis A. Westmore on 10/9/15.

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1 2 UNITED STATES DISTRICT COURT 3 NORTHERN DISTRICT OF CALIFORNIA 4 JOHN DUCHINE, 5 Case No. 15-cv-03529-KAW (PR) Petitioner, 6 ORDER DISMISSING SUCCESSIVE v. PETITION; DENYING CERTIFICATE 7 OF APPEALABILITY PEOPLE OF THE STATE OF 8 CALIFORNIA, 9 Respondent. 10 11 On July 31, 2015, Petitioner John Duchine initiated this action by filing a "Martinez 12 Motion." On the same date, the Clerk of the Court notified Petitioner that to proceed with a Northern District of California United States District Court 13 habeas petition, he must file a petition on the proper form for a petition for a writ of habeas 14 corpus. 15 On August 13, 2015, Petitioner consented to the jurisdiction of the undersigned United 16 States Magistrate Judge over this action. On August 26, 2015, Petitioner filed a letter addressed to 17 the Clerk of the Court indicating that it was his understanding that, for a second or successive 18 habeas petition to be considered, the Court must first rule on his motion under Martinez v. Ryan, 19 132 S.Ct. 1309 (2012). On August 31, 2015, Petitioner filed a petition for a writ of habeas corpus 20 on the proper form. The petition indicates that Petitioner is seeking relief from a sentence incurred 21 in 1988, that he appealed to the Court of Appeal and the California Supreme Court in 1989 and 22 that his federal petition for a writ of habeas corpus was denied by the district court in 2003. 23 The Antiterrorism and Effective Death Penalty Act ("AEDPA") permits second or 24 successive federal habeas petitions only in limited circumstances. Jones v. Ryan, 733 F.3d 825, 25 842 (9th Cir. 2013). In order to file a second or successive petition, a federal habeas petitioner 26 must obtain an order from the court of appeals authorizing the district court to consider the 27 petition. See 28 U.S.C. § 2244(b)(3)(A). This bar can be avoided if the petitioner shows that he is 28 presenting a claim that has not been presented in a prior petition and (A) the "claim relies on a 1 new rule of constitutional law, made retroactive to cases on collateral review by the Supreme 2 Court, that was previously unavailable" or (B) the factual predicate for the claim could not have 3 been discovered previously through the exercise of due diligence, and the facts underlying the 4 claim would be sufficient to establish by clear and convincing evidence that, but for constitutional 5 error, no reasonable fact-finder would have found the petitioner guilty of the underlying offense. 6 28 U.S.C. § 2244(b)(2)(A) and (B). 7 Petitioner apparently believes the Martinez opinion allows him to file a successive petition 8 under § 2244(b)(2)(A). Not so. In Martinez, the Supreme Court held that, "in some 9 circumstances, the ineffective assistance of state post-conviction relief counsel can serve as cause 10 to excuse the procedural default of an ineffective-assistance-of-trial-counsel claim." Jones, 733 11 F.3d at 843. Martinez does not, however, meet the requirements of § 2244(b)(2)(A) because it did 12 not announce a new rule of constitutional law. Id. (Supreme Court characterized its decision in Northern District of California United States District Court 13 Martinez as an "equitable ruling," not a "constitutional" one, thereby bringing to an end the new- 14 rule exception for a successive petition). 15 Accordingly, Petitioner's petition is dismissed without prejudice as a second or successive 16 petition. He may only re-file the petition in this Court if he obtains an order from the court of 17 appeals authorizing this Court to consider the petition. 18 Further, the Court does not issue a certificate of appealability because jurists of reason 19 would not find debatable whether the procedural ruling was correct. See Slack v. McDaniel, 529 20 U.S. 473, 484 (2000). Petitioner is advised that he may not appeal the denial of a certificate of 21 appealability in this Court; rather, he may seek a certificate from the court of appeals. 22 IT IS SO ORDERED. 23 Dated: October 9, 2015 24 ______________________________________ KANDIS A. WESTMORE 25 United States Magistrate Judge 26 27 28 2