The opinion
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8 UNITED STATES DISTRICT COURT
9 NORTHERN DISTRICT OF CALIFORNIA
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ANDRE L. STEVENS,
11 Case No. 21-cv-01908 BLF (PR)
Petitioner,
12 ORDER GRANTING MOTION TO
v. DISMISS; DENYING
13 CERTIFICATE OF
APPEALABILITY; DENYING
14 RON BLOOMFIELD, Warden, OTHER MOTIONS AS MOOT
15 Respondent.
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18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas
19 corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Respondent filed a
20 motion to dismiss the petition as an unauthorized second or successive petition. Dkt. No.
21 11. Petitioner filed a “traverse” which the Court construes as an opposition to
22 Respondent’s motion. Dkt. No. 14. Respondent did not file a reply. For the reasons set
23 forth below, Respondent’s motion is GRANTED.
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25 I. BACKGROUND
26 In 2007, Petitioner was found guilty by a jury in Lake County of first degree
27 murder, with an enhancement for personal use of a knife along with various prior
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in state prison. Id. Petitioner’s appeal of the matter was unsuccessful. Id.
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In 2010, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C.
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§ 2254 in this district, challenging the same 2007 Lake County judgment. Stevens v.
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Jasquez, et al., Case No. 10-cv-04883 JSW (PR). The district court denied the petition on
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the merits and denied a certificate of appealability on February 1, 2012. Id., Dkt. No. 21.1
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The Ninth Circuit Court of Appeals denied a certificate of appealability on May 14, 2013.
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Stevens v. Jasquez, et al., U.S.C.A. (9th Cir.) No. 12-15324.
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On March 17, 2021, Petitioner filed the instant federal habeas petition.
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II. DISCUSSION
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A. Motion to Dismiss
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A second or successive petition containing previously raised or new claims may not
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be filed in the district court unless the petitioner first obtains from the United States Court
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of Appeals an order authorizing the district court to consider the petition. 28 U.S.C. §
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2244(b)(3)(A).
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Respondent argues that the instant habeas petition must be dismissed because it is a
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second or successive petition and has not been authorized by the Ninth Circuit. Dkt. No.
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11 at 1. Respondent asserts that the instant petition is second or successive because
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Petitioner filed at least one prior habeas petition in this district, see Stevens v. Jasquez,
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Case No. 10-04883 JSW (PR), which challenged the same 2007 state conviction out of
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Lake County Superior Court. Id. at 2.
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In response, Petitioner does not deny that he is challenging the same 2007
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conviction. Dkt. No. 14. Rather, he seeks a certificate of appealability (“COA”) from this
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1 Petitioner raised two claims in that petition: (1) ineffective assistance of counsel; and (2)
26 prosecutorial misconduct in four instances. Id. at 2.
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Court and an extension of time while he seeks authorization from the Ninth Circuit to file a
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second or successive petition. Id. To that end, Petitioner has filed a motion for a COA,
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Dkt. No. 12, and a motion for an extension of time, Dkt. No. 13.
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A federal habeas petition is “second or successive” within the meaning of § 2244 “if
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the facts underlying the claim occurred by the time of the initial petition, [] and if the
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petition challenges the same state court judgment as the initial petition.” Brown v. Muniz,
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No. 16-15442, slip op. 1, 11 (9th Cir. May 8, 2018) (citing Panetti v. Quarterman, 551
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U.S. 930, 945 (2007), and Magwood v. Patterson, 561 U.S. 320, 333 (2010)). The parties
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do not dispute that the instant petition meets both these requirements. Accordingly, the
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Court finds that the new claims raised in this action challenges the same conviction
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challenged in a prior federal habeas action and is therefore subject to 28 U.S.C. §
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2244(b)(3)(A). As Respondent correctly asserts, Petitioner is required to obtain an order
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from the Ninth Circuit Court of Appeals authorizing this Court to consider a renewed
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challenge to his state conviction based on new facts, claims or law. Petitioner has not
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presented such an order from the Ninth Circuit of Appeals. Accordingly, the instant
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petition must be dismissed in its entirety as second and successive.
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Petitioner states that he filed for leave to file a second or successive petition with
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the Ninth Circuit on October 7, 2021. Dkt. No. 14 at 2. If the Ninth Circuit grants him
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leave to do so, Petitioner may then return to this Court with the second or successive
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petition and a copy of the Ninth Circuit’s authorization and file a new habeas action.
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III. CONCLUSION
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For the foregoing reasons, Respondent’s motion to dismiss the petition, Dkt. No.
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11, is GRANTED. The instant petition for a writ of habeas corpus is DISMISSED as
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second or successive. 28 U.S.C. § 2244(b)(3)(A). Petitioner may file another petition in
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this Court only if he obtains the necessary order from the Ninth Circuit.
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No certificate of appealability is warranted in this case. See Rule 11(a) of the Rules
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Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on
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certificate of appealability in same order that denies petition). Petitioner has not shown
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“that jurists of reason would find it debatable whether the petition states a valid claim of
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the denial of a constitutional right and that jurists of reason would find it debatable
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whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529
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U.S. 473, 484 (2000).
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In light of this order, Petitioner’s motions for a COA and extension of time are
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DENIED as moot. Dkt. Nos. 12, 13.
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This order terminates Docket Nos. 11, 12, and 13.
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IT IS SO ORDERED.
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Dated: May 20, 2022
i BETH LABSON FREEMAN
45 United States District Judge
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25 Order Granting MTD; Denying COA
PRO-SE\BLF\HC.21\01908Stevens_grant-mtd(sec&succ)
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