Richard Phillips v. Dave Davey ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
AUG 30 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RICHARD LOUIS ARNOLD PHILLIPS, No. 15-16361
Petitioner - Appellant, D.C. No. 1:15-cv-00325-GSA
v.
ORDER and MEMORANDUM*
DAVE DAVEY, Warden,
Respondent - Appellee.
RICHARD LOUIS ARNOLD PHILLIPS, No. 15-72096
Petitioner-Appellant,
v.
DAVE DAVEY, Warden,
Respondent.
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted August 8, 2016**
San Francisco, California
Before: WALLACE and GRABER, Circuit Judges, and LYNN,*** Chief District
Judge.
Petitioner Richard Phillips appeals from the district court’s order dismissing
his habeas corpus petition and declining to issue a certificate of appealability (Case
Number 15-16361). He also requests permission to file a second or successive
habeas petition if we affirm the district court’s order (Case Number 15-72096). We
review de novo the district court’s order concluding that Phillips’s habeas petition
is second or successive. United States v. Lopez, 577 F.3d 1053, 1059 (9th Cir.
2009). We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm the
district court’s order and deny Phillips’s request to file a second or successive
habeas petition.
Phillips argues that he filed his habeas petition under 28 U.S.C. § 2241, not
§ 2254, and, therefore, according to him, his petition is not second or successive
(which would obviate any need for him to secure prior permission from us to file
it). Phillips’s argument is founded on the incorrect premise that he has no judgment
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Barbara M. G. Lynn, United States Chief District
Judge for the Northern District of Texas, sitting by designation.
2
of conviction against him; but his convictions remain intact. See Phillips v.
Vasquez, 56 F.3d 1030, 1033 n.1 (9th Cir. 1995) (holding that “a conviction for
murder is a final judgment even when the death penalty sentence has been reversed
and is not yet final” (citing People v. Jackson, 429 P.2d 600, 602 (Cal. 1967)).
Thus, the district court correctly construed his petition under § 2241 as one under §
2254 since he is “in custody pursuant to the judgment of a State court.”
Because Phillips’s petition is correctly characterized as a § 2254 petition, the
statute governing second or successive provisions applies. 28 U.S.C. § 2244(a).
Phillips has previously challenged his convictions on habeas, so his current petition
is second or successive. Id. Given that, Phillips was required to obtain our
permission before filing the petition, which he did not do. Id. § 2244(b)(3)(A).
Thus, the district court was required to dismiss the petition. Id. § 2244(b)(4).
Phillips argues that the Supreme Court’s decision in Magwood v. Patterson,
561 U.S. 320 (2010), and our decisions in Harrison v. Gillespie, 640 F.3d 888 (9th
Cir. 2011) (en banc), and Wentzell v. Neven, 674 F.3d 1124 (9th Cir. 2012), allow
him to relitigate the claims he made in his earlier habeas petitions. But we have no
need to decide that issue here because currently there is no amended judgment in
this case and thus the cases Phillips cites are inapposite.
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Finally, Phillips requests leave to file his second or successive petition. We
deny his request because he has not carried his statutory burden. See 28 U.S.C.
§ 2244(b)(3)(C).
DISTRICT COURT’S JUDGMENT AFFIRMED (No. 15-16361);
MOTION FOR LEAVE TO FILE A SECOND OR SUCCESSIVE
PETITION DENIED (15-72096)
4