UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA
September 11, 2009
LARRY ROSSER, PETITIONER,
UNITED STATES, RESPONDENT.
The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER RE DISMISSAL
On July 28, 2009, Petitioner filed a document entitled: "Petition for Writ of Habeas Corpus 28 U.S.C. § 2241 (c)(1), (2) & (3) [¶] Petition for Writ of Mandamus and/or Prohibition: Evidentiary Hearing Requested" ("Petition"). The Petition challenges Petitioner's 1996 murder conviction and/or sentence therefor in People v. Rosser, Los Angeles Superior Court case number BA110652 (Petition at 2). Petitioner previously challenged this same conviction and sentence in a habeas corpus petition filed in this Court in 2002 ("the prior habeas action"). See Rosser v. Scribner, CV 07-4980-DDP(E). On January 7, 2008, the Magistrate Judge issued a Report and Recommendation in the prior habeas action, recommending denial and dismissal of the petition with prejudice as untimely. On June 20, 2008, the District Court issued an order adopting the Report and Recommendation in the prior habeas action and entered judgment in that action denying and dismissing the petition with prejudice.
On September 23, 2008, Petitioner filed in the prior habeas action a "Motion to Vacate Judgment" purportedly pursuant to Rule 60(b) of the Federal Rules of Civil Procedure. On June 26, 2009, the Court denied the Motion. On July 16, 2009, the United States Court of Appeals for the Ninth Circuit denied Petitioner's request for a certificate of appealability. See Order filed July 16, 2009 in Rosser v. Scribner, Ninth Circuit case number 08-56177.*fn1
In the present Petition, Petitioner appears to seek, in addition to habeas relief, mandamus relief relating to this Court's denial and dismissal of the prior habeas action. Petitioner seeks, among other things, an order requiring this Court to conduct "merits review" of Petitioner's claims in the prior habeas action, and an order affording Petitioner "the process omitted in the first habeas proceeding Case # CV-07-4890 DDP (E)" (Petition, p. 21). However, mandamus is an "extraordinary" remedy "appropriate only when the [petitioner's] claim is clear and certain and the duty of the officer is ministerial and so plainly prescribed as to be free from doubt . . . ." Nova Stylings, Inc. v. Ladd, 695 F.2d 1179, 1180 (9th Cir. 1983) (citations and quotations omitted). The Petition fails to demonstrate that this Court had or has any "plainly prescribed" "ministerial" duty to consider on the merits Petitioner's prior, untimely habeas petition, much less any such duty to grant the prior petition.*fn2
Although Petitioner purports to bring the present Petition pursuant to 28 U.S.C. section 2241, to the extent the Petition seeks habeas relief, the Petition is governed by 28 U.S.C. section 2254. See Franz v. Hazey, 533 F.3d 724, 735-36 (9th Cir. 2008) (en banc) (explaining that, while section 2241 "provides generally for the granting of writs of habeas corpus by federal courts," section 2254 limits the authority granted in section 2241 where the petitioner is in custody pursuant to a state court judgment); White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004) ("when a state prisoner begins in district court, § 2254 and all associated statutory requirements apply no matter what statutory label the prisoner has given the case"; section 2254 "is the exclusive avenue for a state court prisoner to challenge the constitutionality of his detention") (citation and internal quotations omitted). Petitioner's claims challenging his conviction and sentence were presented, or could have been presented, in the prior habeas petition. Hence, the Court must dismiss the present Petition in accordance with 28 U.S.C. section 2244(b) (as amended by the "Antiterrorism and Effective Death Penalty Act of 1996"). Section 2244(b) requires that a petitioner seeking to file a "second or successive" habeas petition pursuant to section 2254 first obtain authorization from the court of appeals. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive authorization from Court of Appeals before filing second or successive petition, "the District Court was without jurisdiction to entertain [the petition]"); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) ("the prior-appellate-review mechanism set forth in § 2244(b) requires the permission of the court of appeals before 'a second or successive habeas application under § 2254' may be commenced"); Harris v. Felker, 2007 WL 1599990 (E.D. Cal. June 4, 2007), report and recommendation adopted, 2007 WL 2326055 (E.D. Cal. Aug. 14, 2007) (dismissing petition which challenged same conviction challenged in previous petition, where petitioner had not obtained authorization from Court of Appeal to file second or successive petition). Petitioner evidently has not yet obtained authorization from the Ninth Circuit Court of Appeals. Consequently, this Court cannot entertain the present Petition. See Burton v. Stewart, 549 U.S. at 157; see also Murray v. Greiner, 394 F.3d 78, 81 (2d Cir. 2005) (dismissal of petition as barred by statute of limitations "constitutes an adjudication on the merits that renders future petitions under §2254 challenging the same conviction 'second or successive' petitions under §2244(b)"); accord Horstman v. Evans, 2009 WL 1658097, at *2 (E.D. Cal. June 12, 2009); Grissom v. Adams, 2008 WL 2557483, at *2-3 (C.D. Cal. Apr. 17, 2008), adopted, 2008 WL 2595104 (C.D. Cal. June 23, 2008); Bridgewater v. Scriben, 2007 WL 2262760, at *1 (S.D. Cal. Aug. 3, 2007); Reyes v. Vaughn, 276 F. Supp. 2d 1027, 1029 (C.D. Cal. 2003).
For all of the foregoing reasons, the Petition is denied and dismissed without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.
PRESENTED this 3rd day of August, 2009, by: CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE