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Larry Darnell Smith v. Connie Gibson

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


January 31, 2012

LARRY DARNELL SMITH,
PETITIONER,
v.
CONNIE GIBSON,(WARDEN),
RESPONDENT.

The opinion of the court was delivered by: Manuel L. Real United States District Judge

ORDER DISMISSING PETITION AS SUCCESSIVE

Petitioner is a prisoner in state custody pursuant to a May 1996 first-degree murder conviction in California Superior Court, Los Angeles County, Case No. TA034552. [Petition at 2.] This pro se Petition challenges the legality of his conviction and sentence.*fn1

Because it is a second or successive petition filed without prior authorization from the Ninth Circuit Court of Appeals, the Petition must be dismissed.

DISCUSSION

In 1999, Petitioner brought a prior federal habeas petition in this District challenging the same May 1996 first-degree murder conviction he challenges here, on the same basis. [See Case No. CV99-10777-R(RC), Report and Recommendation by Magistrate Judge, Docket No. 21, filed June 21, 2000*fn2 .] That petition was denied on the merits in a judgment issued on July 11, 2000. [See Case No. CV99-10777-R(RC), Docket Nos. 23, 24.]

A new habeas petition that is brought under 28 U.S.C. § 2254 and that challenges the same state court judgment addressed in one or more prior § 2254 petitions disposed of with prejudice, such as the one in this matter, 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 authorize review of a second or successive petition in the district court only 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).

Here, the record indicates that Petitioner requested a certificate of appealabiliy on August 10, 2000 [see Case No. CV99- 10777-R(RC), Docket No. 28], and that his request was denied by the Circuit on December 27, 2000,[see id., Docket No. 31, 32.] Nothing in the record or in Petitioner's filings suggests Petitioner has received permission to file a second or successive Petition for Writ of Habeas Corpus.*fn3 Because Petitioner has failed to obtain the required order, this 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).

ORDERS:

1. It is ORDERED that judgment be entered dismissing the petition as successive.

2. The clerk shall serve copies of this order and the judgment herein on the petitioner.

Presented by:

Dated: January 26, 2012

CARLA M. WOEHRLE United States Magistrate Judge


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