UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
March 18, 2011
The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER DISMISSING PETITION
The pro se Petitioner is a prisoner in state custody pursuant to a conviction in the Los Angeles County Superior Court, Case No. NA027451.*fn1 The present petition for writ of habeas corpus, filed March 15, 2011, challenges the sentence imposed in that case. Petitioner has brought a previous habeas petition in this court challenging the same judgment (Case No. CV 99-4457 CAS (CW)). The petition was denied and dismissed with prejudice in a judgment entered on October 31, 2001.*fn2
A new habeas petition under 28 U.S.C. § 2254, which challenges the same state court judgment addressed in one or more prior § 2254 petitions, is a second or successive petition. A federal district court may not consider a second or successive petition unless the petitioner has first obtained an order from the proper federal circuit court of appeals authorizing the district court to review the new petition. See 28 U.S.C. § 2244(b)(3)(A). The court of appeals may only authorize review of a second or successive petition in the district court if the petitioner "makes a prima facie showing [to the court of appeals] that the application satisfies the requirements of" 28 U.S.C. § 2244(b). See 28 U.S.C. § 2244(b)(3)(C); Felker v. Turpin, 518 U.S. 651, 657, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996).
The present petition is a second or successive petition under § 2244(b)(3)(A) because it challenges the same state court judgment challenged in a prior federal petition, and that prior petition was dismissed with prejudice.*fn3 This court may not review a successive petition unless the petitioner has first obtained the required order from the United States Court of Appeals for the Ninth Circuit. There is no indication in the record that this petitioner has obtained such an order. Therefore, the present petition is subject to dismissal without prejudice. Petitioner may file a new petition in this court if and only if he first obtains authorization from the Ninth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A).
1. It is ORDERED that judgment be entered dismissing the petition as successive.
2. Petitioner's motion for relief from the judgment of the California Supreme Court under Fed. R. Civ. P. 60(b) is denied (docket no. 2, filed March 15, 2011).
3. The clerk shall serve copies of this order and the judgment herein on the petitioner.
Presented by: Dated: March 17, 2011
CARLA M. WOEHRLE United States Magistrate Judge