The opinion of the court was delivered by: Terry J. Hatter, Jr. United States District Judge
ORDER DISMISSING PETITION AS SECOND OR SUCCESSIVE; AND DENYING CERTIFICATE OF APPEALABILITY
On September 30, 2010, Petitioner filed a habeas petition, pursuant to 28 U.S.C. § 2254 ("Petition"). The Petition is the third Section 2254 habeas petition Petitioner has filed stemming from his 1997 state 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 October 18, 1999, Petitioner filed a Section 2254 habeas petition in this Court in Case No. CV 99-11978-TJH (MAN) (the "First Action"). The First Action challenged the Conviction and raised the following two habeas claims: (1) Petitioner was denied his federal constitutional right to be present at all critical stages of trial; and (2) Petitioner was never advised of his Miranda rights, and when he invoked his right to counsel and to remain silent, he was subtly questioned. (First Action petition at 6, 8, and attached memorandum at*fn1 1-19.) On April 26, 2002, the First Action petition was denied on its*fn2 merits and dismissed with prejudice. Petitioner appealed. On January 21, 2003, the Ninth Circuit denied Petitioner's request for a certificate of appealability (Case No. 02-55966). On April 29, 2003, the Ninth Circuit denied Petitioner's motion for reconsideration.
This action is Petitioner's third attempt to obtain Section 2254 habeas relief in connection with the Conviction. The instant Petition alleges a single habeas claim, which is a variation of the same presence error claim alleged in the First Action and denied on its merits.
Petitioner alleges that the California Court of Appeal committed legal error when the presence error claim was raised by Petitioner on direct appeal, and this Court erred in finding that, under 28 U.S.C. § 2254(d)(1), the state court's decision on that claim did not warrant habeas relief.
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 a 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 court 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 the second or successive [petition] only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2242(b)(2)." Burton v. Stewart, 549 U.S. 147, 153, 127 S.Ct. 793, 796 (2007).
In the First Action, Petitioner sought Section 2254 relief based on the same 1997 state court conviction challenged in this action, and he raised two claims that were resolved adversely to him on their respective merits, including a version of the claim alleged in the instant Petition. Accordingly, the current Petition is second or successive within the meaning of Section 2244(b).
Critically, Petitioner has not obtained permission from the Ninth Circuit to bring this second or successive Petition, as required by Section 2244(b)(3). Permission to file a second or successive petition *fn3 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 claim alleged in the Petition -- which is not based on any new factual predicate or new rule of constitutional law and is substantially repetitive of one of the claims resolved adversely to him in the First Action -- it is difficult to see how Petitioner will be able to satisfy Section 2244(b)'s requirements.*fn4
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 ...