The opinion of the court was delivered by: S. James Otero United States District Judge
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION
On January 6, 2011, Darnel Davone Walker (hereinafter referred to as "Petitioner") filed a "Petition for Writ of Habeas Corpus by a Person in State Custody." Petitioner was convicted on December 13, 1999 in Los Angeles County Superior Court Case No. BA180270 of two counts of rape in violation of California Penal Code ("PC") §261(a)(2), two counts of forcible oral copulation in violation of PC §288a(c)(2), and attempted kidnapping for the purpose of rape in violation of PC §§209(b)(1), 664. (See Petition, Attachment page i.) Petitioner has raised the following claims in his Petition: "(1) Petitioner was convicted of an uncharged offense in violation of his due process rights under U.S.C.A. Fourteenth Amendment; (2) the officer's warrantless arrest, search and seizure violated Petitioner's due process rights under U.S.C.A. Fourteenth (#14) Amendment; (3) the trial court erroneously denied Petitioner's motion for acquittal at the close of the prosecution's case in chief in violation of Petitioner's U.S.C.A. Fourteenth Amendment right to equal protection and due process of law; (4) the prosecution knowingly used perjured testimony in violation of Petitioner's U.S.C.A. Fourteenth Amendment; (5) ineffective assistance of counsel on direct appeal in violation of Petitioner's U.S.C.A. Fourteenth Amendment; and (6) the trial court abused its discretion when it ordered restitution without linking the restitution order to any of the factors in 18 U.S.C.A. §3664(a)." (See Petition attached pages at 1-71.)
It appears from the face of the petition that it is directed to the same 1999 Los Angeles County Superior Court conviction as prior habeas petitions filed by Petitioner in this Court on June 28, 2006, in Case No. CV 06-04104-SJO (VBK)*fn1 and on November 17, 2009, in Case No. CV 09-08423-SJO (VBK).*fn2 On January 9, 2007, Judgment was entered in Case No. CV 06-04104-SJO (VBK) denying the petition on the grounds that the Petition was untimely and dismissing the action with prejudice, pursuant to the District Judge's Order approving and adopting the Magistrate Judge's Report and Recommendation. On November 20, 2009, Judgment was entered denying the Petition in Case No. CV 09-08423-SJO (VBK) for lack of subject matter jurisdiction.
The Petition now pending is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132, 110 Stat. 1214)("the Act"), which became effective April 24, 1996. Section 106 of the Act amended 28 U.S.C. §2244(b) to read, in pertinent part, as follows:
"(2) 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 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.
(3)(A) Before a second or successive application permitted by this section is 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." (Emphasis Added.)
The Petition now pending constitutes a second and/or successive petition challenging the same conviction as Petitioner's prior habeas petitions, within the meaning of 28 U.S.C. §2244(b). Thus, it was incumbent on Petitioner under §2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing the District Court to consider the Petition, prior to his filing of it in this Court. Petitioner's failure to do so deprives the Court of subject matter jurisdiction.
For the foregoing reasons, IT IS ORDERED that this action be summarily dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Presented this day of January, 2011 by:
VICTOR B. KENTON UNITED STATES ...