Opinion
CASE NO. 1:04-CR-5234 AWI
06-22-2016
CLIFTON ELIAS HOWARD III, Petitioner v. UNITED STATES OF AMERICA, Respondent
ORDER DENYING PETITION AS REDUNDANT AND ORDER STAYING MATTER
(Doc. No. 309)
On September 30, 2011, Petitioner's first 28 U.S.C. § 2255 petition was denied. See Doc. No. 290. Subsequently, this Court denied a number of motions by Petitioner, which were disguised and unauthorized successive § 2255 petitions. See Doc. Nos. 302, 304, 307.
On June 20, 2016, Petitioner through his counsel filed this successive 28 U.S.C. § 2255 petition. See Doc. No. 309. As part of that petition, Petitioner states that he has filed an emergency motion with the Ninth Circuit Court of Appeals in order to obtain certification under 28 U.S.C. § 2255(h) to file this successive petition. See id. Petitioner believes that he is entitled to relief under the recent Supreme Court decision of Johnson v. United States, 135 S.Ct. 2551 (2015). Because of statute of limitations concerns, Petitioner requests that the Court stay this petition until after the Ninth Circuit has considers his emergency motion. See id.
On June 21, 2016, the Ninth Circuit granted Petitioner's request for certification to file a successive § 2255 petition. See Doc. No. 310. As part of that order, the Ninth Circuit stated that the Clerk of this Court was to file Petitioner's application as a § 2255 petition with a filing date of May 18, 2016. See id. The Ninth Circuit also suggested that the Court stay this matter until the Ninth Circuit issues an opinion in Begay v. United States (Appeal No. 14-10080). The Court will follow the Ninth Circuit's suggestion and stay this matter until a decision in Begay is reached.
Additionally, today, the Ninth Circuit clarified that the one-year limitations period for a § 2255 petition based on Johnson started to run on June 26, 2015. See Orona v. United States, --- F.3d ---, Ninth Circuit Docket 16-70568 (9th Cir. 2016). The Ninth Circuit also explained that the statute of limitations is tolled beginning from the date that a petitioner files for certification with the Ninth Circuit to pursue a successive § 2255 petition. See Orona v. United States, --- F.3d ---, Ninth Circuit Docket 16-70568 (9th Cir. 2016). Through Orona and the granting of permission to file a successive petition with a filing date in May 2016, the Ninth Circuit has definitively extinguished any concerns that Petitioner may have had about the statute of limitations.
However, because Petitioner improperly filed a successive petition prior to the Ninth Circuit permitting him do so, Petitioner has caused internal clerical and docketing problems. In order to alleviate these clerical problems, the Court will deny Petitioner's June 20, 2016 petition (Doc. NO. 309) as duplicative. This denial is for clerical and docketing purposes only, and it will have no effect on the petition that was ordered to be filed by the Ninth Circuit (Doc. No. 311).
The June 20, 2016 petition was improper because the Court has no jurisdiction to hear an uncertified successive § 2255 petition, even if a stay is requested. See 28 U.S.C. §§ 2244(b)(3)(A), 2255(h); United States v. Washington, 653 F.3d 1057, 1059 (9th Cir. 2011); Tubbs v. United States, 2016 U.S. Dist. LEXIS 40976, *2-*3 (N.D. Ala. Mar. 29, 2016); Parks v. United States, 2014 U.S. Dist. LEXIS 96468, *3-*5 (E.D. Mo. July 16, 2014); Smith v. Brunsman, 2011 U.S. Dist. LEXIS 133738, *6-*8 (N.D. Ohio Oct. 24, 2011); Hartwell v. Ozmint, 2010 U.S. Dist. LEXIS 7581, *2-*4 (D. S.C. Jan. 29, 2010).
ORDER
Accordingly, IT IS HEREBY ORDERED that: 1. The 28 U.S.C. § 2255 petition filed on June 20, 2016 (Doc. No. 309) is DENIED as redundant; 2. This matter is STAYED until resolution by the Ninth Circuit of Begay v. United States (Appeal No. 14-10080); and 3. The denial of the June 20, 2016 petition (Doc. No. 309) has no effect on the May 18, 2016 petition (Doc. No. 311). IT IS SO ORDERED. Dated: June 22, 2016
/s/_________
SENIOR DISTRICT JUDGE