King v. Thornell

1 WO 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA

10 Frederick King, Jr., No. CV-23-01962-PHX-KML 11 Petitioner, ORDER v. Ryan Thornell, et al., 14 Respondents.

16 In 2003, petitioner Frederick King, Jr., was convicted in state court of first-degree felony murder, two counts of attempted second degree murder, and attempted robbery.

18 After King pursued a direct appeal and multiple rounds of post-conviction relief in state court, in 2014 he filed a habeas corpus petition in federal court. That petition was denied in 2015 as untimely and King did not seek a certificate of appealability. King filed a second federal petition for habeas corpus in 2023. Magistrate Judge Michael T. Morrissey issued a Report and Recommendation (“R&R”) finding King had filed a second or successive habeas petition not authorized by the court of appeals.1 (Doc. 16 at 8.) King filed objections.

25 A district judge “may accept, reject, or modify, in whole or in part, the findings or King sought permission from the Ninth Circuit to file a second or successive petition raising the same arguments he made in his petition here. Motion for Leave to File a “Second or Successive” Petition, King v. Thornell, No. 23-2294 (9th Cir. Sept. 18, 2023).

28 The Ninth Circuit denied King’s request. King v. Thornell, No. 23-2294 (9th Cir. Dec. 14, 2023).

1 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b). The district court must review de novo the portions to which an objection is made. Id. The district court need not, however, review the portions to which no objection is made. See Schmidt v. Johnstone, 263 F. Supp. 2d 1219, 1226 (D. Ariz. 2003) (“[D]e novo review of factual and legal issues is required if objections are made, but not otherwise.”) (quotation marks and citation omitted).

7 King objects to the R&R, arguing his petition is not second or successive for two main reasons.

9 First, according to King, “[a] dismissal for untimeliness presents a permanent and incurable bar to a factual review of the underlying claims” but there is no authority “on whether a second petition filed after the first petition, which does not seek to review claims previously presented in a habeas petition, is considered ‘second’ or ‘successive.’”

13 (Doc. 17 at 3.) That is incorrect. “[D]ismissal of a habeas petition as untimely constitutes a disposition on the merits and . . . a further petition challenging the same conviction would be ‘second or successive.’” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).

16 Second, King argues the Arizona Supreme Court’s 2022 denial of his sixth petition for review constitutes an intervening judgment permitting him to file a petition now. (Doc. 17 at 2–3.) But “[a] habeas petition is second or successive . . . if it raises claims that were or could have been adjudicated on the merits.” Id. (emphasis added). Put differently, “[a] later-filed petition is precluded as second or successive . . . if the claim it raises was ripe and could have been brought in the prisoner’s prior petition challenging the same judgment.” Creech v. Richardson, 94 F.4th 847, 849 (9th Cir. 2024). The claim in the current later-filed petition, which is premised on a change in Arizona law that went into effect in 2006, could have been brought in King’s first federal petition in 2014.

25 Therefore, the R&R is correct that the current petition is an unauthorized second or successive petition.

27 IT IS ORDERED the Report and Recommendation (Doc. 16) is ADOPTED. The petition for a writ of habeas corpus (Doc. 1) is DENIED. The Clerk of Court shall enter a || judgment of dismissal without prejudice.

2 IT IS FURTHER ORDERED a Certificate of Appealability and leave to proceed || in forma pauperis on appeal are DENIED because the dismissal of the petition is justified by a plain procedural bar and jurists of reason would not find the procedural ruling || debatable.

6 Dated this 2nd day of January, 2025.

9 Ada M.A Honorable Krissa M. Lanham 10 United States District Judge -3-