(HC) Avitt v. Jones
2:24-cv-01783
E.D. Cal.May 28, 2025Background
- Petitioner Charles Emmett Avitt, a California state prisoner, filed a habeas corpus petition under 28 U.S.C. § 2254 challenging his 1992 murder conviction in San Joaquin County.
- The respondent moved to dismiss Avitt's petition as both successive and untimely.
- Avitt previously filed a habeas petition (Avitt I) challenging the same conviction; that earlier petition was denied on the merits and the denial was affirmed on appeal.
- Under federal law, a petitioner must receive authorization from the court of appeals before filing a "second or successive" habeas petition.
- Avitt did not provide any evidence of such authorization from the Ninth Circuit for the current petition.
- The court did not address the issue of timeliness, finding the petition must be dismissed for lack of authorization.
Issues
| Issue | Avitt's Argument | Jones's Argument | Held |
|---|---|---|---|
| Whether the new habeas petition is | N/A (no opposition filed) | Petition is successive; | Petition is successive; district court lacks |
| barred as second or successive under | must be authorized by circuit | jurisdiction without circuit authorization. | |
| 28 U.S.C. § 2244(b) | court before filing. | Petition dismissed without prejudice. |
Key Cases Cited
- Felker v. Turpin, 518 U.S. 651 (1996) (Second or successive habeas petitions require court of appeals' authorization)
- Burton v. Stewart, 549 U.S. 147 (2007) (Prior authorization is a jurisdictional prerequisite for successive petitions)
- Gonzalez v. Crosby, 545 U.S. 524 (2005) (Defines successive petitions within meaning of § 2244(b))
- Cooper v. Calderon, 274 F.3d 1270 (9th Cir. 2001) (District court lacks jurisdiction over unauthorized successive habeas petitions)
- Woods v. Carey, 525 F.3d 886 (9th Cir. 2008) (Petitioner must obtain appellate authorization for successive habeas petitions)