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Gregorio Roberto Ortiz, Jr v. Domingo Uribe

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


October 24, 2011

GREGORIO ROBERTO ORTIZ, JR., PETITIONER,
v.
DOMINGO URIBE, JR., RESPONDENT.

The opinion of the court was delivered by: James V. Selnaunited States District Judge

ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION

On October 14, 2011, Gregorio Roberto Ortiz, Jr. (hereinafter referred to as "Petitioner") filed a "Petition for Writ of Habeas Corpus by a Person in State Custody," pursuant to 28 U.S.C. §2254.

Petitioner was convicted in Los Angeles County Superior Court Case No. KA052823 and sentenced to ninety-one years in prison.*fn1 (See Petition at 2.) Petitioner contends "nondisclosure of witness - names." (See Petition at 5, attached pages.)

It appears from the face of the Petition that it is directed to the same 2001 Los Angeles County Superior Court conviction as prior habeas petitions filed by Petitioner in this Court on May 18, 2006 in Case No. CV 06-03072-AHM (VBK) and on July 6, 2010 in Case No. CV 10- 04965-AHM (VBK).*fn2

On June 11, 2008, Judgment was entered in Case No. CV 06-03072- AHM (VBK), denying the petition and dismissing the action with prejudice, pursuant to the District Judge's Order approving and adopting the Magistrate Judge's Report and Recommendation. On July 9, 2010, Judgment was entered in Case No. CV 10-04965-AHM (VBK), dismissing the Petition 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:

"(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed unless--

(2) (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. Further, the Court declines to issue a Certificate of Appealability ("COA").*fn3

LET JUDGMENT BE ENTERED ACCORDINGLY.

Presented on October 19, 2011 by: VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE


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