The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner is a state prisoner proceeding without counsel with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. On April 13, 2010, respondents filed a motion to dismiss the petition as procedurally barred, successive and untimely. On April 30, 2010, petitioner filed an opposition to the motion, clarifying that the instant petition is a challenge based on the "new" rule of law pronounced by the United States Supreme Court in Cunningham v. California, 549 U.S. 270 (2007). (Opp'n at 2, 4 & Ex. A at 29.)
Petitioner was convicted in 1979 on charges of second degree murder with a use of weapon enhancement. Petitioner claims that the Los Angeles County Superior Court improperly sentenced him in violation of the principles announced in Cunningham v. California, 549 U.S. 270 (2007). (Pet. at 4.)
Judicial records reveal that petitioner previously filed a petition for writ of habeas corpus attacking this same conviction. See Case No. 2:95-cv-07890 GHK CW (Central District of California, Western Division--Los Angeles).*fn1 The petition was denied on October 14, 1997. (Id.)
"A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed. . . ." 28 U.S.C. § 2244(b)(2). This is the case unless,
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(2). Before a second or successive petition permitted by statute can be 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).
Here, petitioner has not obtained an order from the Ninth Circuit Court of Appeals authorizing the district court to consider his second or successive petition.*fn2 Petitioner cannot proceed with his successive petition in this court unless and until he obtains such an order.*fn3
Moreover, petitioner is advised that should he be granted leave to file a successive petition, that petition should be filed in the Central District of California as he was convicted in Los Angeles County Superior Court.
Therefore, petitioner's unauthorized second or successive petition should be dismissed without prejudice to its refiling with a copy of an order from the Ninth Circuit authorizing him to file a second or successive petition.
Accordingly, IT IS HEREBY RECOMMENDED that:
1. Respondent's April 13, 2010 motion to dismiss be ...