Hendon v. Burton

Background

Carlos Duane Hendon filed this petition under 28 U.S.C. § 2254, which allows a state prisoner to seek federal review of custody allegedly imposed in violation of federal law. The opinion states that Hendon proceeded without a lawyer and paid the filing fee. He challenged his 1995 conviction and sentence from the Santa Clara County Superior Court.

Hendon had previously filed a federal habeas petition challenging that same conviction and sentence. The earlier petition was dismissed as untimely under the one-year federal filing deadline, and the Ninth Circuit affirmed that dismissal. Hendon later sought relief from that judgment, but the district court denied the request and denied a certificate of appealability; the Ninth Circuit also denied his request for a certificate.

The current petition raised six claims concerning, among other things, the trial court’s refusal to discharge retained counsel, appellate counsel’s failures, ineffective assistance of counsel, and alleged reasons to excuse procedural default. The opinion describes these claims as similar to claims raised in the earlier federal petition, including the challenge involving retained counsel.

Second-or-successive petition ruling

Under 28 U.S.C. § 2244(b), a federal habeas petition is generally considered “second or successive” when it challenges the same state-court judgment and the facts supporting the claims existed when the earlier federal petition was filed. A new petition generally cannot proceed in the district court unless the court of appeals first authorizes it. The statute provides limited exceptions involving a previously unavailable, retroactive constitutional rule or newly discoverable facts meeting a demanding standard.

The court concluded that Hendon’s petition was second or successive because it challenged the same 1995 conviction and sentence, the facts underlying the claims had occurred by the time of the earlier petition, and the current claims could have been adjudicated in that earlier case. The court also stated that Hendon had not alleged or demonstrated that the statutory exceptions applied.

The court did not reach the merits of Hendon’s claims—that is, it did not decide whether the trial court or counsel violated his constitutional rights. It dismissed the petition as second or successive under § 2244(b).

Certificate of appealability and final disposition

A certificate of appealability is required for an appeal from the denial of a state-prisoner habeas petition. The court denied one because Hendon had not made the required showing concerning denial of a constitutional right.

The court denied a certificate of appealability, directed the clerk to enter judgment in favor of Robert Burton and against Hendon, and ordered the case closed. Judge Haywood S. Gilliam, Jr. issued and signed the order.