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Moore v. Adams

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


December 9, 2008

CHARLES MOORE, PETITIONER,
v.
DERRAL G. ADAMS, RESPONDENT.

The opinion of the court was delivered by: George H. King United States District Judge

ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION

On December 1, 2008, Charles Moore (hereinafter referred to as "Petitioner") filed a "Petition for Writ of Habeas Corpus by a Person in State Custody," pursuant to 28 U.S.C. §2254 in the United States District Court for the Central District of California. Petitioner was convicted by a jury in Los Angeles County Superior Court on April 29, 1992 of two counts of attempted murder in violation of California Penal Code ("PC") §§664/187(a). As to both counts, the jury also found true the armed principal enhancements. (PC §§12022(a)(1); 122022.5; 1203.06.) On June 24, 1992, Petitioner was sentenced to prison for ten years, plus life with the possibility of parole. (See Petition at 2.)

Petitioner has raised the following claims in the within Petition: "(1) false imprisonment, dishonest public officials hid [Petitioner's] entitlement to his jury acquittal; (2) custody expiration date, Captain F. Field ratified the assault, robbery and kidnap; (3) injury in fact, [Petitioner's] civil right to file a lawsuit is likely to cause more injurys [sic] by prison officials; (4) [Petitioner] requests the Court's protection pursuant to Lujan v. Defenders of the Wild [sic], 504 U.S. 555 (1992); and (5) [Petitioner] was acquitted of two counts of 664/187 under the essential elements of firearms use." (See Petition at 5-6.*fn1

It appears from the face of the Petition that it is directed to the same 1992 Los Angeles County Superior Court conviction as a prior habeas petition filed by Petitioner in this Court on October 11, 2007, in Case No. CV 07-06595-GHK (VBK).*fn2 On April 20, 2008, Judgment was entered in Case No. CV 07-06595-GHK (VBK), denying the petition and dismissing the action with prejudice, pursuant to the District Judge's Order approving and adopting the Magistrate Judge's Report and Recommendation.

The Petition now pending is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132, 110 Stat. 1214)("the Act"), which became effective April 24, 1996. Section 106 of the Act amended 28 U.S.C. §2244(b) to read, in pertinent part, as follows:

"(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless--

(2) (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

(3)(A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." (Emphasis added.)

The Petition now pending constitutes a second and/or successive petition challenging the same conviction as Petitioner's prior habeas petition, within the meaning of 28 U.S.C. §2244(b). Thus, it was incumbent on Petitioner under §2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing the District Court to consider the Petition, prior to his filing of it in this Court. Petitioner's failure to do so deprives the Court of subject matter jurisdiction.

For the foregoing reasons, IT IS ORDERED that this action be summarily dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Presented this 5th day of December, 2008 by:

VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE


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