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Barnes v. Unknown

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


November 9, 2010

DANNY CHARLES BARNES, JR., PETITIONER,
v.
UNKNOWN, RESPONDENT.

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

ORDER DISMISSING SECOND OR SUCCESSIVE HABEAS CORPUS PETITION AND DENYING A CERTIFICATE OF APPEALABILITY

Before the Court is a petition for a writ of habeas corpus ("Petition") filed on October 1, 2010. Although the Petition is largely incomprehensible, the Court assumes that Petitioner is attempting to challenge his 2001 conviction for assault by means likely to cause great bodily injury and subsequent 30-years-to-life sentence for which he is currently incarcerated--the same conviction and sentence which he challenged in this court in 2009. See Barnes v. Warden, CV 09-1573-JHN (PJW). In 2010, the court denied his initial petition on the merits. See Barnes v. Warden, CV 09-1573-JHN (PJW), February 9, 2010 Order Accepting Report and Recommendation of United States Magistrate Judge. Petitioner did not attempt to appeal that decision.

Because his first petition was denied on the merits, the current Petition is subject to dismissal as being second and successive. See 28 U.S.C. § 2244. Absent an order from the appellate court, this Court does not have jurisdiction to entertain a second or successive petition. See 28 U.S.C. § 2244(3)(A). For this reason, the Petition is dismissed.

Further, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right or that the court erred in its procedural ruling and, therefore, a certificate of appealability will not issue in this action. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).

IT IS SO ORDERED.

PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE

20101109

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