The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER DISMISSING PETITION AS SECOND OR SUCCESSIVE AND DENYING CERTIFICATE OF APPEALABILITY
On August 18, 2010, Petitioner filed a habeas petition, pursuant to 28 U.S.C. § 2254 ("Petition"). The Petition is the second Section 2254 habeas petition Petitioner has filed stemming from his 2004 rape conviction in the Los Angeles Superior Court (the "Conviction").
Under the Rules Governing Section 2254 Cases in the United States District Courts, a habeas petition filed by a prisoner in state custody "must" be summarily dismissed "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, 28 U.S.C. foll. § 2254. For the reasons set forth below, the Petition must be, and is, DISMISSED as second or successive, pursuant to 28 U.S.C. § 2244(b) and Rule 4.
On June 20, 2008, Petitioner filed a Section 2254 habeas petition in this Court in Case No. CV 08-4087-AHS (MAN) (the "First Action"). The First Action petition challenged the Conviction and raised four habeas claims predicated on allegations of the denial of Petitioner's right to call defense witnesses, prosecutorial misconduct (two claims), and ineffective assistance of trial counsel. The First Action petition also included a motion for DNA testing.*fn1 On April 8, 2010, Judgment was entered dismissing the First Action with prejudice, on the ground that it was untimely. Petitioner did not appeal.
This action is Petitioner's second attempt to obtain Section 2254 habeas relief in connection with the Conviction. The instant Petition alleges the same four habeas claims that were alleged in the First Action petition, and it includes the same motion for DNA testing.
State habeas petitioners generally may file only one federal habeas petition challenging a particular state conviction and/or sentence. See, e.g., 28 U.S.C. § 2244(b)(1) (courts must dismiss claim presented in second or successive petition when that claim was presented in a prior petition) and § 2244(b)(2) (with several exceptions discussed infra, courts must dismiss a claim presented in a second or successive petition when that claim was not presented in a prior petition). "A habeas petition is second or successive . . . if it raises claims that were or could have been adjudicated on the merits" in an earlier Section 2254 petition. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).
In those instances when Section 2244(b) provides a basis for pursuing a second or successive Section 2254 habeas petition (described below), state habeas petitioners seeking relief in this district must first obtain authorization from the Ninth Circuit before filing any such second or successive petition. 28 U.S.C. § 2244(b)(3). The Ninth Circuit "may authorize the filing of a second or successive [petition] only if it presents a claim not previously raised that satisfies one of the grounds articulated in § 2242(b)(2)." Burton v. Stewart, 549 U.S. 147, 153, 127 S.Ct. 793, 796 (2007).
The First Action petition sought Section 2254 relief based on the same 2004 state court conviction challenged in this action, and Petitioner raised the same four claims alleged in the instant Petition. The untimeliness of the First Action petition "presents a 'permanent and incurable' bar to federal review," and thus, the dismissal of the First Action petition "constitutes a disposition on the merits" for purposes of Section 2244(b). McNabb, 576 F.3d at 1030 (citation omitted). The present Petition, thus, is second or successive within the meaning of Section 2244(b). See id. (holding "that dismissal of a section 2254 habeas petition for failure to comply with the statute of limitations renders subsequent petitions second or successive for purposes of" Section 2244(b)); in accord Murray v. Greiner, 394 F.3d 78, 79 (2d Cir. 2005); Altman v. Benik, 337 F.3d 764, 766 (7th Cir. 2003).
Critically, Petitioner has not obtained permission from the Ninth Circuit to bring this second or successive Petition, as required by Section 2244(b)(3).*fn2 Permission to file a second or successive petition may be granted only if Petitioner makes a prima facie showing that: (1) the claim relies on a new, and previously unavailable, rule of constitutional law, which the Supreme Court has ordered be made retroactive to collateral proceedings; or (2) the factual predicate of the claim could not have been discovered earlier through the exercise of due diligence, and the facts alleged, if proven, would be sufficient to establish by clear and convincing evidence that, but for the constitutional error claimed, no reasonable fact-finder would have found Petitioner guilty. See 28 U.S.C. § 2244(b)(2)(A)(B) and (3)(C); McNabb, 576 F.3d at 1030. To pursue a Section 2254 habeas action attacking his Conviction, Petitioner must persuade the Ninth Circuit that at least one these predicates exists for any claim he now wishes to raise. Based on the nature of the claims alleged in the Petition -- which are the same as the claims found to be untimely in the First Action -- it is difficult to see how Petitioner will be able to satisfy Section 2244(b)'s requirements.*fn3
As Petitioner has not obtained permission from the Ninth Circuit to bring a second or successive petition, the instant Petition must be dismissed, because this Court lacks jurisdiction to consider it. 28 U.S.C. § 2244(b); see also Burton, 549 U.S. at 157, 127 S.Ct. at 799 (district court lacks jurisdiction to consider the merits of a second or successive petition absent prior authorization from the circuit court). Accordingly, IT IS ORDERED that Judgment be entered dismissing this action without prejudice.
In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether a certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S.Ct. 1595, 1604 (2000). The Court concludes that a ...