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Prado v. Altoon

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


May 4, 2010

SATURNINO PRADO, PETITIONER,
v.
ALICE E. ALTOON, RESPONDENT.

The opinion of the court was delivered by: Jacqueline H. Nguyen United States District Judge

ORDER DISMISSING PETITION AS SUCCESSIVE

The pro se petitioner is a prisoner in state custody pursuant to a 2000 conviction in California Superior Court, Los Angeles County, Case No. BA195408. The present petition for writ of habeas corpus was filed in the Northern District of California on March 8, 2010, in Case No. CV 10-981-JWS(PR). It was ordered transferred to this district where it was filed on April 20, 2010.

The present petition challenges Petitioner's conviction in Los Angeles Superior Court Case No. BA195408. Petitioner has brought several prior federal habeas petitions that challenged the same conviction. One of these petitions, Prado v. Specter, No. CV 05-4053-GHK(CW), was dismissed with prejudice, as untimely, in a judgment entered November 15, 2006. Five other petitions have been dismissed without prejudice. See Prado v. McGrath, No. CV 04-456-GHK(CW) (dismissed as unexhausted); Prado v. Spector, No. CV 07-2532-GHK(CW) (dismissed as successive); Prado v. Knowles, No. CV 07-3355-GHK(CW) (successive); and Prado v. Warden, No. CV 08-6909-GHK(CW)(successive), and Prado v. Warden, No. CV 08-7458-GHK(CW)(successive).

DISCUSSION

A new habeas petition under 28 U.S.C. § 2254, which challenges the same state court judgment addressed in one or more prior § 2254 petitions, is a second or successive petition. A federal district court may not consider a second or successive petition unless the petitioner has first obtained an order from the proper federal circuit court of appeals authorizing the district court to review the new petition. See 28 U.S.C. § 2244(b)(3)(A). The court of appeals may only authorize review of a second or successive petition in the district court if the petitioner "makes a prima facie showing [to the court of appeals] that the application satisfies the requirements of" 28 U.S.C. § 2244(b). See 28 U.S.C. § 2244(b)(3)(C); Felker v. Turpin, 518 U.S. 651, 657, 116 S.Ct. 2333, 135 L.Ed. 2d 827 (1996).

The present petition is a second or successive petition under § 2244(b)(3)(A) because it challenges the same state court judgment challenged in a prior federal petition, and that prior petition was dismissed with prejudice.*fn1 This court may not review a successive petition unless the petitioner has first obtained the required order from the United States Court of Appeals for the Ninth Circuit. There is no indication in the record that this petitioner has obtained such an order. Therefore, the present petition is subject to dismissal without prejudice. Petitioner may file a new petition in this court if and only if he first obtains authorization from the Ninth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A).

ORDERS:

1. It is ORDERED that judgment be entered dismissing the petition as successive.

2. The clerk shall serve copies of this order and the judgment herein on the petitioner.

Dated: April 23, 2010

CARLA M. WOEHRLE United States Magistrate Judge


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