The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
FINDINGS AND RECOMMENDATION REGARDING RESPONDENT'S MOTION TO DISMISS THE INSTANT PETITION
Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
On January 12, 1999, Petitioner was convicted of two counts of rape, one count of oral copulation, and one count of kidnapping. Petitioner was sentenced to an indeterminate state prison term of life, with no parole eligibility for 25 years. (Lodged Doc. Nos. 1-2.)
Petitioner appealed the conviction and judgment. On January 22, 2001, the California Court of Appeal, Fifth Appellate District, affirmed the judgment. (Lodged Doc. No. 2.) The California Supreme Court denied review on March 28, 2001. (Lodged Docs. 3-4.)
Petitioner filed several post-conviction collateral challenges. (See Respondent's Motion, at 2-3.)
Petitioner filed a prior federal petition for writ of habeas corpus challenging the same conviction as the instant petition on May 28, 2003, in case number 1:03-cv-05780-DLB (HC).
The prior petition was denied on the merits on September 13, 2005, and was affirmed by the Ninth Circuit Court of Appeals on November 15, 2007.
Petitioner filed the instant petition on March 18, 2009. (Court Doc. 1.) Respondent filed a motion to dismiss on July 7, 2009 and moves to dismiss this petition on the grounds that it is successive and untimely. Petitioner filed an opposition on July 22, 2009, and Respondent filed a reply on August 6, 2009. (Court Docs. 18, 20.) Because the court finds merit in Respondent's first contention, it finds it unnecessary to reach the second.
Because the current petition was filed after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) apply to Petitioner's current petition. Lindh v. Murphy, 521 U.S. 320, 327 (1997). A federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). The court must also dismiss a second or successive petition raising a new ground unless the petitioner can show that 1) the claim rests on a new, retroactive, constitutional right or 2) the factual basis of the claim was not previously discoverable through due diligence, and these new facts establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). However, it is not the district court that decides whether a second or successive petition meets these requirements, which allow a petitioner to file a second or successive petition.
Section 2244 (b)(3)(A) provides: "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." In other words, Petitioner must obtain leave from the Ninth Circuit before he can file a second or successive petition in district court. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). This Court must dismiss any second or successive petition unless the Court of Appeals has given Petitioner leave to file the petition because a district court lacks subject-matter jurisdiction over a second or successive petition. Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. denied, 117 S.Ct. 794 (1997); Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996).
A second or successive petition for habeas corpus is not considered "successive" if the initial habeas petition was dismissed for a technical or procedural reason versus on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-87 (2000) (holding that a second habeas petition is not successive if the initial habeas petition was dismissed for failure to exhaust); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-45 (1998) (a second habeas ...