(HC) Banks v. Davey, 1:17-cv-00802

Larry Banks, a California state prisoner, was convicted in 2009 of first-degree murder and using a knife; sentenced to life.
Banks previously filed a federal habeas petition challenging the same conviction; the district court denied it and the Ninth Circuit affirmed.
Banks filed a new 28 U.S.C. § 2254 habeas petition alleging three ineffective-assistance-of-counsel claims arising from the 2009 trial.
Under 28 U.S.C. § 2244(b)(3)(A), a petitioner must obtain authorization from the appropriate court of appeals before filing a second or successive habeas petition in district court.
Banks had not obtained leave from the Ninth Circuit to file a successive petition; therefore the district court found it lacked jurisdiction to consider the petition and dismissed it.
The court also declined to issue a certificate of appealability, concluding reasonable jurists would not debate the dismissal as second or successive.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court may hear successive § 2254 petition without appellate authorization	Banks argued his ineffective-assistance claims warrant consideration	Respondent argued Banks did not obtain Ninth Circuit authorization as required	Dismissed: district court lacks jurisdiction; petition is second or successive and must be authorized by the court of appeals
Whether leave to amend or other relief appropriate	Banks implicitly seeks consideration of claims on merits	Respondent contended dismissal is required absent appellate authorization	Denied: dismissal without leave to amend because jurisdictional bar cannot be cured by amendment
Whether certificate of appealability should issue	Banks would be entitled to appeal denial of his habeas claims	Respondent opposed COA, noting procedural bar	Denied: reasonable jurists would not find dismissal debatable
Whether dismissal should be with prejudice	Banks sought adjudication of claims	Respondent sought dismissal for lack of jurisdiction, not merits	Dismissal without prejudice to seeking leave from the Ninth Circuit

Felker v. Turpin, 518 U.S. 651 (1996) (district courts lack jurisdiction to hear second or successive habeas petitions absent circuit authorization)
Greenawalt v. Stewart, 105 F.3d 1268 (9th Cir. 1997) (district court must dismiss successive petition without circuit authorization)
Miller-El v. Cockrell, 537 U.S. 322 (2003) (standard for issuing a certificate of appealability)
Slack v. McDaniel, 529 U.S. 473 (2000) (COA appropriate only where reasonable jurists could debate district court's resolution)
Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (Rule 4 preliminary screening authority described)
Jarvis v. Nelson, 440 F.2d 13 (9th Cir. 1971) (leave to amend not required when no tenable claim can be pleaded)