UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
April 7, 2010
MILOS KLVANA, PETITIONER,
STATE OF CALIFORNIA, RESPONDENT.
The opinion of the court was delivered by: James V. Selna United States District Judge
OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS AND ORDER DENYING CERTIFICATE OF APPEALABILITY
On March 26, 2010, petitioner Milos Klvana, a person in state custody proceeding pro se, filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of California, challenging his 1989 convictions and sentence in Los Angeles County Superior Court on nine counts of second degree murder.*fn1 Petition at 1. The petition was transferred to this Court on April 5, 2010.
This Court, pursuant to Federal Rule of Evidence 201, takes sua sponte judicial notice of the records in three prior federal habeas corpus actions brought by petitioner: (1) Klvana v. State of California, case no. CV 93-0780-RMT(SH) ("Klvana I"), which was dismissed without prejudice; (2) Klvana v. State of California, case no. CV-94-0863-RMT(RMC) ("Klvana II"), which was denied on the merits on December 19, 1995,*fn2 see Klvana v. California, 911 F. Supp. 1288 (C.D. Cal. 1995); and (3) Klvana v. State of California, case no. CV 95-7224-RMT(RMC) ("Klvana III"), which was dismissed on June 3, 1996, as an abuse of the writ.
The instant petition is governed by Section 106 of the Antiterrorism and Effective Death Penalty Act of 1996 ("the Act"), which 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." 28 U.S.C. § 2244(b)(3)(A).
"Section 2244(b)(3)(A) 'is an allocation of subject-matter jurisdiction to the court of appeals. A district court must dismiss a second or successive petition [. . .] unless the court of appeals has given approval for the filing.'" In re Page, 170 F.3d 659, 661 (7th Cir. 1999) (quoting Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 1996)), cert. denied, 528 U.S. 1162 (2000); see also Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001)("When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application." (quoting Libby v. Magnusson, 177 F.3d 43, 46 (1st Cir. 1999)).
The instant petition is a successive petition challenging petitioner's 1989 convictions. The Act "creates a 'gatekeeping' mechanism for the consideration of second or successive applications in district court." Felker v. Turpin, 518 U.S. 651, 657, 116 S.Ct. 2333, 2339, 135 L.Ed. 2d 827 (1996); Stewart v. Martinez-Villareal, 523 U.S. 637, 641, 118 S.Ct. 1618, 1620, 140 L.Ed. 2d 849 (1998). Under this procedure, "[a]n individual seeking to file a 'second or successive' application must move in the appropriate court of appeals for an order directing the district court to consider his application." Martinez-Villareal, 523 U.S. at 641, 118 S.Ct. at 1620. Here, it plainly appears on the face of the petition that petitioner has not received authorization from the Ninth Circuit Court of Appeals for the instant petition to be brought. This Court, thus, must dismiss the instant habeas corpus petition as a successive petition for which it lacks subject matter jurisdiction under 28 U.S.C. § 2244(b)(3).
Rule 4 of the Rules Governing Section 2254 Cases in the United States Courts provides that "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Thus, summary dismissal of the pending successive petition is warranted.
Additionally, the Court finds that an appeal from this Opinion and Order would not be taken in good faith, and that petitioner has not made a substantial showing that he has been denied a constitutional right and that this Court is not correct in its procedural ruling, for the reasons set forth herein, and accordingly, a certificate of appealability should not issue under 28 U.S.C. § 2253(c)(2) and Fed. R. App. P. 22(b). Slack v. McDaniel, 529 U.S. 473, 483, 120 S.Ct. 1595, 1604, 146 L.Ed. 2d 542 (2000); Cooper v. Calderon, 308 F.3d 1020, 1021-22, n.2 (9th Cir. 2002), cert. denied, 123 S.Ct. 1793 (2003).
IT IS HEREBY ORDERED that Judgment be entered SUMMARILY DISMISSING the habeas petition and action for lack of subject matter jurisdiction.*fn3
IT IS FURTHER ORDERED that a Certificate of Appealability be DENIED.
DATE: April 6, 2010
ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE