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James Earl Hampton v. Tim Virga (Warden

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


July 28, 2011

JAMES EARL HAMPTON,
PETITIONER,
v.
TIM VIRGA (WARDEN),
RESPONDENT.

The opinion of the court was delivered by: Ronald S.W. Lew Senior United States District Judge

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

Petitioner, a California state prisoner, filed a habeas petition, pursuant to 28 U.S.C. § 2254, on July 5, 2011 ("Petition"). The Petition is the sixth habeas corpus petition Petitioner has filed in this Court stemming from his 1998 state court conviction and sentence.

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).

BACKGROUND

On December 1, 2000, Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody (Under 28 U.S.C. § 2254)" in Case No. CV 00-12667-RSWL (MAN) (the "First Action"). The petition filed in the First Action raised two claims for relief, alleging that the prosecution failed to disclose exculpatory DNA evidence and committed misconduct by failing to timely respond to a motion. (See petition in First Action at 6.) The First Action was resolved on the merits, and habeas relief was denied by Judgment entered on September 6, 2002. The United States Court of Appeals for the Ninth Circuit subsequently denied Petitioner's request for a certificate of appealability.*fn1

While the First Action was pending, Petitioner filed a separate habeas petition on January 22, 2001, in Case No. CV 01-635-RSWL (MAN) (the "Second Action"). In the Second Action, Petitioner raised claims based on asserted evidentiary and instructional errors, as well as a claim that his sentence was unauthorized under California law. (See petition filed in Second Action at 6-7.) On February 23, 2001, the Court dismissed the Second Action, without prejudice, on the basis that the action might run afoul of the second or successive petition prohibition set forth in 28 U.S.C. § 2244. The Court expressly directed Petitioner to seek leave in the First Action to file an amended habeas petition adding his additional claims, so that all of his claims would Pursuant to Rule 201 of the Federal Rules of Evidence, the be considered in that pending action. Petitioner failed to do so.

On March 12, 2002, over a year later, Petitioner filed another habeas petition in Case No. CV 02-2075-RSWL (MAN) (the "Third Action"). In the Third Action, Petitioner raised three of the four grounds for relief alleged in the Second Action. (See petition filed in Third Action at 6-7.) On April 1, 2002, the Court dismissed the Third Action, without prejudice, on the basis that the action might run afoul of the second or successive petition prohibition of Section 2244. The Court again expressly and clearly directed Petitioner to seek leave in the First Action to file an amended habeas petition adding these claims, so that all of his claims would be considered in that pending action. Petitioner again failed to do so.

Instead, Petitioner waited a year and a half, until after the First Action was concluded, and then filed an application in the Ninth Circuit seeking leave to file a second or successive petition. That application was denied on July 28, 2003 (Case No. 03-72286). Petitioner waited another year and then filed a second application in the Ninth Circuit for leave to file a second or successive petition, which was denied on September 27, 2004 (Case No. 04-73765).

Over eight months passed. On June 23, 2005, Petitioner filed a fourth habeas petition in this Court in Case No. CV 05-4568-RSWL (MAN) (the "Fourth Action"). In the Fourth Action, Petitioner raised the same four claims alleged in the dismissed Second Action (three of which were again raised in the dismissed Third Action). (See petition filed in Fourth Action at 5-6.) On August 11, 2005, the Court dismissed the Fourth Action, without prejudice, on the basis that it was second or successive.

On October 17, 2005, Petitioner filed a third application in the Ninth Circuit seeking leave to file a second or successive petition, which was denied on January 27, 2006 (Case No. 05-75987). On April 4, 2006, Petitioner filed a fourth application in the Ninth Circuit for leave to file a second or successive petition, which was denied on June 14, 2006 (Case No. 06-71700).

On November 20, 2006, Petitioner filed a fifth habeas petition in this Court in Case No. CV 06-7419-RSWL (MAN) (the "Fifth Action"). In the Fifth Action, Petitioner raised three of the same claims alleged in the dismissed Second Action. (See petition filed in Fifth Action at 5-6.) On December 12, 2006, the Court dismissed the Fifth Action, without prejudice, on the basis that it was second or successive. On April 4, 2007, Petitioner submitted a motion for relief from judgment pursuant to Rule 60(b) of the Federal Rules of Civil Procedure, which this Court denied on April 27, 2007.

On September 5, 2007, Petitioner filed a fifth application in the Ninth Circuit for leave to file a second or successive petition. The Ninth Circuit denied the application on November 21, 2007 (Case No. 07-73585).

Over three years passed. On February 9, 2011, Petitioner filed a sixth application in the Ninth Circuit for leave to file a second or successive petition, in which he raised the same claims that are alleged in the instant Petition. On April 21, 2011, the Ninth Circuit denied the application (Case No. 11-70428).

DISCUSSION

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 a 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, 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 1998 conviction challenged here, and his habeas claims attacking his conviction were resolved adversely to him on their merits. Accordingly, the current Petition is second or successive within the meaning of Section 2244(b).*fn2

As Petitioner has not obtained permission from the Ninth Circuit to bring a second or successive petition -- indeed, the Ninth Circuit has denied him leave to do so repeatedly, including specifically with respect to Petitioner's presently-raised claims -- this Court lacks jurisdiction to consider the instant Petition. 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: the Petition is DISMISSED; and Judgment shall 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 certificate of appealability is unwarranted, and thus, a certificate of appealability is DENIED.

IT IS SO ORDERED.

PRESENTED BY: MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE


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