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Pena v. Hornbeck

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


April 23, 2010

ARACELI PENA, PETITIONER,
v.
TINA HORNBECK, WARDEN, RESPONDENT.

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

MEMORANDUM AND ORDER DISMISSING PETITION

In 2002, petitioner was convicted of murder with special circumstances, and was sentenced to state prison for a term of life without parole. In 2008, petitioner filed a habeas petition in this Court challenging that 2002 conviction. See Case No. CV 08-7369-AHS(JWJ). That petition was dismissed with prejudice on June 1, 2009, because it was not filed within the AEDPA's one year limitation period. Petitioner did not appeal from that judgment. On January 4, 2010, petitioner filed a second habeas petition challenging her 2002 conviction. That petition was dismissed as successive on January 11, 2010. Petitioner filed this third petition on March 31, 2010.

To the extent that petitioner again seeks to challenge her 2002 conviction and sentence, this petition successive. Because petitioner has not obtained authorization from the Ninth Circuit to file a successive petition, this Court lacks jurisdiction to consider it. See 28 U.S.C. § 2244(b)(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."); McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding that dismissal of a habeas petition for failure to comply with the statute of limitation renders subsequent petitions challenging the same conviction successive); see generally Felker v. Turpin, 518 U.S. 651, 657 (1996); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001), cert. denied, 538 U.S. 984 (2003).*fn1

To the extent that petitioner intended to file this document in the Ninth Circuit, but inadvertently mailed it to this Court, the following is the correct address for that court:

Office of the Clerk United States Court of Appeals for the Ninth Circuit 95 Seventh Street San Francisco, CA 94103

The petition is dismissed without prejudice to petitioner's right to seek the necessary authorization from the Court of Appeals.


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