The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
ORDER DISMISSING PETITION AS SUCCESSIVE
The pro se petitioner is a prisoner in state custody pursuant to a 1997 conviction in California Superior Court, Los Angeles County, Case No. LA022473. [Petition ("Pet.") at 2.] The present petition, filed June 27, 2008, challenges a sentencing enhancement imposed in the 1997 judgment. Petitioner brought a prior habeas petition in this court, Talvensarri v. Roe, No. CV 00-761-DDP(CW), which was denied and dismissed with prejudice in a judgment entered May 12, 2003.*fn1
In an order filed July 9, 2008, in the present case, the court ordered the parties to file briefs concerning whether the present case should be dismissed as successive to No. CV 00-761. [Docket no. 4.] Respondent's brief was filed on November 5, 2008. [Docket no. 11.] Petitioner's reply was filed on November 26, 2008. [Docket no. 14.] It is evident that the present petition is successive, and should be summarily dismissed without prejudice.
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).
"Generally, a new petition is 'second or successive' if it raises claims that were or could have been adjudicated on their merits in an earlier petition." Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001). A later petition by the same petitioner will not be successive for purposes of § 2244(b), if, for example, the two petitions address different state court judgments, or the prior petition was dismissed without prejudice. See, e.g., In re Turner, 101 F.3d 1323, 1323 (9th Cir. 1997).
There is no indication, in the present case, that Petitioner has obtained an order from the court of appeals authorizing him to file a successive petition. It is undisputed that the present petition raises a challenge to the sentence imposed in the 1997 judgment, and Petitioner has confirmed this in his reply. [See docket no. 14.]
Petitioner was also in custody pursuant to the 1997 judgment at the time he filed the prior petition, No 00-761. The 1997 sentence was based, in part, on a prior conviction in 1990 (also following a plea agreement). The petition in No. CV 00-761 raised three claims, namely: (1) that the enhanced sentence in the 1997 judgment violated the plea agreement in petitioner's 1990 case; (2) that Petitioner received ineffective assistance of counsel in regard to his plea in the 1990 case; and (3) that Petitioner's plea in the 1990 case was invalid. [See No. CV 00-761, docket no. 29, Report and Recommendation ("R&R") at 5, quoting Petitioner's First Amended Petition and Supporting Memorandum, No. CV 00-761, docket nos. 7, 8.] Although all three claims raised in No. CV 00-761 referred to Petitioner's prior, 1990, conviction, at least two of the claims directly challenged the sentence imposed in the 1997 conviction.*fn2 The court addressed those claims on their merits, and the petition was denied and dismissed with prejudice in a judgment entered May 12, 2003. [No. CV 00-761, docket no. 32.] This court and the Ninth Circuit also denied Petitioner's requests for a certificate of appealability. [No. CV 00-761, docket nos. 35, 39.]
Thus, both Petitioner's prior and present petitions in this court have challenged his 1997 state court judgment. Furthermore, there is no legal reason that the sole claim in the present petition (also a challenge to the sentence in the 1997 judgment) could not have been raised in the prior petition. Accordingly, the present petition is a second or successive petition under § 2244(b)(3)(A), and 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).
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 ...