United States District Court, W.D. Washington, Tacoma
ORDER DECLINING TO ADOPT REPORT AND RECOMMENDATION IN PART AND DISMISSING PETITION
BENJAMIN H. SETTLE, District Judge.
This matter comes before the Court on the Report and Recommendation ("R&R") of the Honorable Karen L. Strombom, United States Magistrate Judge (Dkt. 4), and Petitioner Benjamin Salofi Asaeli's ("Asaeli") objections to the R&R (Dkt. 5).
On December 18, 2014, Asaeli filed a motion to proceed in forma pauperis and a proposed petition for a writ of habeas corpus. Dkts. 1 & 1-1. On December 23, 2014, Judge Strombom issued the R&R recommending that, pursuant to Ninth Circuit Rule of Procedure 23(a), the Court refer the petition to the Ninth Circuit because the petition is a second or successive petition. Dkt. 4. On January 13, 2015, Asaeli filed objections stating that "the record is clear" that this is a second or successive petition. Dkt. 5 at 1. Asaeli argues that the petition should be allowed because his first petition is still on appeal and successive petitions are allowed on claims that have yet to yield a determination on the merits. Id. (citing Stewart v. Martinez-Villareal, 523 U.S. 637 (1998)).
The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions. Fed.R.Civ.P. 72(b)(3).
First, the Court disagrees that Ninth Circuit Civil Rule 23(a) controls the determination of this petition. That rule provides that "[i]f a second or successive petition or motion, or application for leave to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals." Circuit Rule 23(a) (emphasis added). There is no indication in Asaeli's petition or leave to file a petition that he mistakenly filed either with the district court. In fact, Asaeli states in his objections, which were not before Judge Strombom, that the record is clear that this is a second or successive petition. Therefore, Asaeli's petition was intentionally filed in this Court and the Court declines to adopt the portion of the R&R applying Circuit Rule 23(a).
Second, a determination whether a petition is a second or successive petition is a final order of the district court subject to review on appeal. In such cases, the Ninth Circuit assumes jurisdiction pursuant to 28 U.S.C. § 2253 and conducts a de novo review. See Richey v. Sinclair, 585 Fed.Appx. 636 (9th Cir. 2014). Moreover, the Court must also pass upon the issue of whether a certificate of appealability shall issue. Id. Therefore, it appears that 28 U.S.C. § 2241(b)(1) controls the determination of whether an intentionally filed petition is a second or successive petition and whether the Court shall dismiss such a petition.
Third, it is undisputed that Asaeli's petition is a second or successive petition that is subject to dismissal. Asaeli, however, argues that the Supreme Court has created an exception for petitions that include claims that have yet to yield a determination on the merits. Dkt. 5. at 1. In Stewart, the Court allowed a petitioner to present a claim for the second time where the district court initially dismissed the claim without prejudice for failure to exhaust administrative remedies. Stewart, 523 U.S. at 644-645. Stewart is distinguishable because Asaeli has presented his claim and the district court's decision is currently pending appeal. Asaeli fails to provide any authority for the proposition that he is entitled to a second petition when the first petition is currently on appeal. Therefore, the Court dismisses Asaeli's petition as a second or successive petition.
The Court having considered the R&R, Asaeli's objections, and the remaining record, does hereby find and order as follows:
(1) The Court DECLINES to ADOPT the R&R in part;
(2) DISMISSES Asaeli's petition as a second or successive petition;
(3) DENIES a Certificate of ...