Salcido v. Thornell ( 2023 )

1 JL 2 WO 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 David Hector Salcido, No. CV-23-08588-PCT-JAT (JZB) 10 Petitioner, 11 v. ORDER 12 Ryan Thornell, et al., 13 Respondents. 14 15 Petitioner David Hector Salcido, who is confined in the Central Arizona 16 Correctional Facility, has filed a pro se Petition for Writ of Habeas Corpus pursuant to 28 17 U.S.C. § 2254 (Doc. 1) and paid the filing fee. Petitioner has also filed a Motion for Case 18 Status (Doc. 3). The Court will grant the Motion insofar as this Order updates Petitioner 19 on the status of this case and will dismiss the Petition without prejudice. 20 I. Petition 21 This is Petitioner’s second petition for a writ of habeas corpus challenging his 22 conviction in Mohave County Superior Court, case #CR2010-00277, for multiple counts 23 of sexual abuse, molestation of a child, and sexual assault. On November 29, 2021, 24 Petitioner filed his first petition for a writ of habeas corpus regarding that conviction, 25 Salcido v. Arizona Attorney General, CV-21-08256-PCT-JAT. In an April 5, 2022 26 Order (Doc. 22 in CV-21-08256-PCT-JAT), the Court denied the petition, and the Clerk of 27 Court entered Judgment accordingly (Doc. 23 in CV-21-08256-PCT-JAT). Petitioner 28 appealed, and on October 26, 2022, the Ninth Circuit Court of Appeals denied Petitioner’s 1 request for a certificate of appealability. (Doc. 27 in CV-21-08256-PCT-JAT). 2 Under 28 U.S.C. § 2244, a petitioner may not file a second or successive § 2254 3 petition in this Court unless the petitioner has obtained certification from the Ninth Circuit 4 Court of Appeals authorizing the Court to consider the second or successive § 2254 5 petition. 28 U.S.C. § 2244(b)(3)(A). The current Petition is a “second or successive” 6 petition because (1) the original petition was dismissed with an adjudication on the merits, 7 (2) the current Petition challenges the same judgment as the initial petition, and (3) the 8 facts underlying the claims in the current Petition accrued by the time of the initial petition. 9 Slack v. McDaniel, 529 U.S. 473, 485-486 (2000); Brown v. Muniz, 889 F.3d 661, 667 (9th 10 Cir. 2018). Because the current Petition is a second or successive petition and because 11 Petitioner has not presented a certification order from the Ninth Circuit authorizing the 12 Court to consider it, the Court will dismiss the current Petition and this action. The Court, 13 however, will dismiss the case without prejudice so Petitioner can seek certification from 14 the Ninth Circuit to file a second or successive § 2254 petition.1 15 IT IS ORDERED: 16 (1) Petitioner’s Motion for Case Status (Doc. 3) is granted insofar as this Order 17 updates Petitioner on the status of this case. 18 (2) Petitioner’s Petition for Writ of Habeas Corpus (Doc. 1) and this action are 19 dismissed without prejudice, and the Clerk of Court must enter judgment accordingly. 20 (3) The Clerk of Court must provide Petitioner with a copy of the form 21 recommended by the Ninth Circuit Court of Appeals for filing an Application for Leave to 22 File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. 23 § 2255. 24 25 1 In order to obtain certification from the Ninth Circuit, the Petitioner must 26 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 27 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 28 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). 1 (4) Pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases, in the 2| 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 4| Slack v. McDaniel, 529 U.S. 473, 484 (2000). 5 Dated this 11th day of December, 2023. 6 ' James A, CO ? Senior United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3- UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT INSTRUCTIONS for Form 12. Application for Leave to File Second or Successive Petition under 28 U.S.C. § 2254 or Motion under 28 U.S.C. § 2255 Read these instructions carefully. 1. The application, whether handwritten or typewritten, must be legible and signed by the applicant under penalty of perjury. An original must be provided to the Clerk of the Ninth Circuit. The application must comply with Circuit Rule 22-3, which is attached to these instructions. 2. All questions must be answered concisely. Add separate sheets if necessary. 3. If this is a capital case, the applicant shall serve a copy of this application and any attachments on respondent and must complete and file the proof of service that accompanies this form. If this is not a capital case, service on the respondent is not required. 4. The proposed 28 U.S.C. § 2254 petition or 28 U.S.C. § 2255 motion that applicant seeks to file in the district court must be included with Form 12. 5. Applicants seeking authorization to file a second or successive section 2254 habeas corpus petition shall include copies of all relevant state court decisions if reasonably available. Mail Form 12 to the court at: Clerk, U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939 Do not file this instruction page CIRCUIT RULE 22-3. APPLICATIONS FOR AUTHORIZATION TO FILE SECOND OR SUCCESSIVE 28 U.S.C. § 2254 PETITION OR § 2255 MOTION - ALL CASES; STAY OF EXECUTION - CAPITAL CASES (a) Applications. An applicant seeking authorization to file a second or successive 28 U.S.C. § 2254 petition or 28 U.S.C. § 2255 motion in the district court must file an application in the court of appeals demonstrating entitlement to such leave under sections 2254 or 2255. See Form 12. An original in paper format of the application must be filed with the Clerk of the court of appeals unless the application is submitted via the Appellate Electronic Filing System. No filing fee is required. If an application for authorization to file a second or successive section 2254 petition or section 2255 motion is mistakenly submitted to the district court, the district court shall refer it to the court of appeals. If an unauthorized second or successive section 2254 petition or section 2255 motion is submitted to the district court, the district court may, in the interests of justice, refer it to the court of appeals. (Rev. 12/1/09; Rev. 7/1/13; Rev. 7/1/16; Rev. 12/1/18) The applicant must: (1) include Form 12 if submitted by an applicant not represented by counsel; (2) include the proposed section 2254 petition or section 2255 motion that the applicant seeks to file in the district court; (3) state as to each claim presented whether it previously has been raised in any state or federal court and, if so, the name of the court and the date of the order disposing of such claim(s); and (4) state how the requirements of sections 2244(b) or 2255 have been satisfied. (b) Attachments. If reasonably available to the applicant, the application must include copies of all relevant state court orders and decisions. (Rev. 12/1/09; Rev 7/1/16) (c) Service. (1) Capital Cases: In capital cases, the applicant must serve a copy of the application, attachments, and proposed section 2254 petition/section 2255 motion on the respondent, and must attach a certificate of service to the application filed with the Court. (Rev. 7/1/16) (2) Noncapital Cases: In noncapital cases, service of the application on the respondent is not required. (New 7/1/16) (d) Response. (1) Capital Cases: In capital cases where an execution date is scheduled and no stay is in place, respondent shall respond to the application and file supplemental attachments as soon as practicable. Otherwise, in capital cases, respondent shall respond and file supplemental attachments within 14 days of the date the application is served. (Rev. 12/1/09) (2) Noncapital Cases: In noncapital cases, no response is required unless ordered by the Court. Respondent may include supplemental attachments with its response. (Rev. 7/1/16) (e) Decision. The application will be determined by a three-judge panel. In capital cases where an execution date is scheduled and no stay is in place, the Court will grant or deny the application, and state its reasons therefore, as soon as practicable. (f) Stays of Execution. If an execution date is scheduled and no stay is in place, any judge may, if necessary, enter a stay of execution, see Circuit Rule 22- 2(e), but the question will be presented to the panel immediately. If the Court grants leave to file a second or successive application, the Court shall stay the applicant’s execution pending disposition of the second or successive petition by the district court. (Rev. 12/1/18) Cross Reference: • Circuit Rule 25-5. Electronic Filing on page 84, specifically, Circuit Rule 25- 5(b), Documents that may be submitted either electronically or in paper format CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 22-3 The district court is required to transfer mistakenly filed applications for authorization to file a second or successive section 2254 petition or 2255 motion. If an applicant files a document that appears to be an unauthorized section 2254 petition or 2255 motion and facially alleges a claim based on a new rule of constitutional law or newly discovered evidence of actual innocence, the district court may transfer the filing to the court of appeals in the interests of justice or, in the alternative, the district court may dismiss the filing without prejudice to the applicant seeking authorization from the court of appeals on Ninth Circuit Form 12. The rule requires applicants to provide the court of appeals with the proposed petition or motion. Pro se applicants are encouraged to use the form petition or motion adopted by the district court where the applicant anticipates filing the document. (New 7/1/16) UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Form 12. Application for Leave to File Second or Successive Petition under 28 U.S.C. § 2254 or Motion under 28 U.S.C. § 2255 Instructions for this form: http://www.ca9.uscourts.gov/forms/form12instructions.pdf 9th Cir. Case Number (to be provided by court) ____________________________ Applicant Name _____________________________________________________ Prisoner Registration Number __________________________________________ Address ___________________________________________________________ ___________________________________________________________ Name of Respondent (Warden) _________________________________________ You MUST answer the following questions: (1) What conviction(s) are you challenging? ________________________________________________________________ ________________________________________________________________ (2) In what court(s) were you convicted of these crime(s)? ________________________________________________________________ ________________________________________________________________ (3) What was the date of each of your conviction(s) and what is the length of each sentence? ________________________________________________________________ ________________________________________________________________ For questions (4) through (10), provide information separately for each of your previous §§ 2254 or 2255 proceedings. Use additional pages if necessary. (4) Has the judgment of your conviction or sentence been modified or amended? If yes, when and by what court? ________________________________________________________________ ________________________________________________________________ (5) With respect to each conviction and sentence, have you ever filed a petition or motion for habeas corpus relief in federal court under 28 U.S.C. § 2254 or § 2255? Yes ☐ No ☐ (a) In which federal district court did you file a petition or motion? _____________________________________________________________ (b) What was the docket number? _____________________________________________________________ (c) On what date did you file the petition/motion? _____________________________________________________________ (6) What grounds were raised in your previous habeas proceeding? (list all grounds and issues previously raised in that petition/ motion) ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ (7) Did the district court hold an evidentiary hearing? Yes ☐ No ☐ (8) How did the district court rule on your petition/motion? ☐ District court dismissed petition/motion. If yes, on what grounds? __________________________________________________ ☐ District court denied petition/motion. ☐ District court granted relief. If yes, on what claims and what was the relief? __________________________________________________ (9) On what date did the district court decide your petition/motion? ________________________________________________________________ (10) Did you file an appeal from that disposition? Yes ☐ No ☐ (a) What was the docket number of your appeal? _______________________________________________________________ (b) How did the court of appeals decide your appeal? _______________________________________________________________ (11) State concisely each and every ground or issue you wish to raise in your current petition or motion for habeas relief. Summarize briefly the facts supporting each ground or issue. ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ (12) For each ground raised, was it raised in the state courts? If so, what did the state courts rule and when? (Attach a copy of all relevant state court decisions, if available) ________________________________________________________________ (13) For each ground/issue raised, was this claim raised in any prior federal petition/motion? (list each ground separately) ________________________________________________________________ ________________________________________________________________ (14) For each ground/issue raised, does this claim rely on a new rule of constitutional law? (list each ground separately and give case name and citation for each new rule of law) ________________________________________________________________ ________________________________________________________________ (15) For each ground/issue raised, does this claim rely on newly discovered evidence? What is the evidence and when did you discover it? Why has this newly discovered evidence not been previously available to you? (list each ground separately) ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ (16) For each ground/issue raised, does the newly discovered evidence establish your innocence? How? ________________________________________________________________ ________________________________________________________________ (17) For each ground/issue raised, does the newly discovered evidence establish a federal constitutional error? Which provision of the Constitution was violated and how? ________________________________________________________________ ________________________________________________________________ (18) Provide any other basis for your application not previously stated. ________________________________________________________________ ________________________________________________________________ ________________________________________________________________ Signature ____________________________________ Date _________________ In capital cases only, proof of service on respondent MUST be attached. A sample proof of service is attached to this form. Attach proposed section 2254 petition or section 2255 motion to this application. Mail this form to the court at: Clerk, U.S. Court of Appeals for the Ninth Circuit, P.O. Box 193939, San Francisco, CA 94119-3939 CERTIFICATE OF SERVICE Applications for Leave to File Second or Successive 28 U.S.C. §§ 2254/2255 Petitions/Motions DEATH PENALTY CASES ONLY Case Name ____________________________ v. __________________________ I certify that a copy of the application for leave to file a second or successive 28 U.S.C. § 2254 petition or § 2255 motion with any attachments was served, either in person or by mail, on the person listed below. Signature __________________________________________________________ (Notary NOT required) Date of Service ____________________________ Name Address _________________________ _________________________________________