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Allen Reed Kness v. James D. Hartley

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


March 19, 2012

ALLEN REED KNESS,
PETITIONER,
v.
JAMES D. HARTLEY, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: Christina A. Snyder United States District Judge

ORDER DISMISSING PETITION AS SUCCESSIVE

Pro se petitioner is a prisoner in the custody of the State of California pursuant to a 1999 conviction in California Superior Court, San Luis Obispo County. This petition, which was transferred from the United States District Court for the Eastern District of California on March 14, 2012, is a challenge to that conviction and resulting sentence. For the reasons discussed below, the petition must be dismissed as an unauthorized second or successive petition.

Discussion

This is the third habeas challenge to Petitioner's 1999 state court conviction and sentence Petitioner has submitted to this court. The first was dismissed in September 2001, without prejudice, as unexhausted. [See case no. CV01-7423-FMC(CT), docket nos. 3, 4.] The second was dismissed with prejudice in a judgment entered February 14, 2006. [See Case No. CV 05-5368-FMC(CW), docket nos. 13, 14.]

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, nothing in the court's docket or in Petitioner's filings suggests Petitioner has received permission to file a second or successive Petition for Writ of Habeas Corpus. 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 hereby ORDERED that judgment be entered dismissing the petition as successive.

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

Presented by: Dated: March 15, 2012

CARLA M. WOEHRLE United States Magistrate Judge

20120319

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