UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
April 26, 2012
MICHAEL A. MILLER, PETITIONER,
M.D. BITER, KERN VALLEY STATE PRISON WARDEN, RESPONDENT.
The opinion of the court was delivered by: Honorable Manuel L. Real United States District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS AND DISMISSING ACTION WITHOUT PREJUDICE
On April 17, 2012, petitioner Michael A. Miller's Petition for Writ of Habeas Corpus (the "Current Federal Petition") was transferred to and filed in the Central District of California.*fn1 The Current Federal Petition challenges a 2000 conviction in the Los Angeles County Superior Court (the "State Case" or "State Conviction") on multiple grounds.*fn2 (Current Federal Petition at 6-7). The Current Federal Petition reflects that petitioner has previously sought, and been denied federal habeas relief and a certificate of appealability relative to the State Conviction. (Current Federal Petition at 4-5).
Based on the record and the applicable law, the Current Federal Petition should be denied and this action should be dismissed without prejudice for lack of jurisdiction because petitioner did not obtain the requisite authorization from the Court of Appeals to file a successive petition.*fn3
II. PROCEDURAL HISTORY*fn4
A. State Court Conviction
On December 22, 2000, a Los Angeles County Superior Court jury found petitioner guilty of one count of corporal injury to a spouse, one count of assault by means likely to produce great bodily injury and one count of false imprisonment by violence in connection with the July 15, 2000 beating of petitioner's wife. The jury further found true allegations that petitioner's current convictions included a serious felony, and that petitioner had two prior serious or violent felony convictions withing the meaning of California's Three Strikes law. On July 25, 2001, the trial court sentenced petitioner to 25 years to life in state prison.
B. First Federal Action
On December 5, 2001, petitioner filed in the Central District of California, a Petition for Writ of Habeas Corpus by a Person in State Custody in Case No. 01-1053 R(Mc) ("First Federal Petition") challenging the State Conviction. On January 8, 2002, judgment was entered dismissing the First Federal Petition without prejudice based on petitioner's failure to exhaust available state remedies.
C. Second Federal Action
On August 15, 2002, petitioner filed in the Central District of California, a second Petition for Writ of Habeas Corpus by a Person in State Custody in Case No. 02-6406 R(Mc) ("Second Federal Petition") challenging the State Conviction. On April 14, 2003, judgment was once again entered dismissing the Second Federal Petition without prejudice based on petitioner's failure to exhaust available state remedies.
D. Third Federal Action
On June 13, 2003, petitioner filed in the Central District of California, a third Petition for Writ of Habeas Corpus by a Person in State Custody in Case No. CV 03-4206 R(Mc) ("Third Federal Petition") challenging the State Conviction. On March 25, 2004, judgment was entered dismissing the Third Federal Petition without prejudice as a mixed petition.
E. Fourth Federal Action
On October 3, 2005, petitioner filed in the Central District of California, an operative First Amended Petition for Writ of Habeas Corpus by a Person in State Custody in Case No. CV 04-9355 R(JC) ("Fourth Federal Petition"). The Fourth Federal Petition again challenged the State Conviction, asserting thirty-six (36) grounds for relief. On July 25, 2007, the assigned Magistrate Judge issued a Report and Recommendation recommending that the Fourth Federal Petition be denied on the merits and that the Fourth Federal Action be dismissed with prejudice. This Court adopted such Report and Recommendation, and judgment was entered denying the Fourth Federal Petition and dismissing the Fourth Federal Action on August 27, 2007. On September 26, 2008, the Ninth Circuit denied petitioner's request for a certificate of appealability in Case No. 07-56360.
F. Fifth Federal Action and Subsequent Ninth Circuit Actions
On July 7, 2009, a Petition for Writ of Habeas Corpus submitted by petitioner was transferred to and filed in the Central District of California in Case No. 09-4837 R(JC) ("Fifth Federal Petition").*fn5 The Fifth Federal Petition again challenged the State Conviction. On August 6, 2009, judgment was entered denying the Fifth Federal Petition and dismissing the Fifth Federal Action without prejudice because the Fifth Federal Petition was successive and the record did not reflect that petitioner had obtained authorization from the Ninth Circuit to file it.
On October 19, 2009, the Ninth Circuit denied petitioner leave to file a second or successive habeas corpus petition in the Central District of California in Case No. 09-72833.*fn6
On May 19, 2010, in Case No. 10-80047, the Ninth Circuit entered a pre-filing order restricting petitioner's future pro se filings in the Ninth Circuit and directing petitioner to follow specified procedures relative to any such future filings. In the same case, the Ninth Circuit subsequently found that petitioner's application for permission to file a second or successive habeas corpus petition was so insubstantial as to not warrant further review and declined to permit it to proceed.
On April 13, 2011, the Ninth Circuit denied petitioner's request for a certificate of appealability in Case No. 09-56433.
G. Current Federal Petition
As noted above, on April 17, 2012, the Current Federal Petition which again challenges the State Conviction, was transferred to and filed in this Court. The record does not reflect that petitioner has obtained authorization from the Ninth Circuit to file the Current Federal Petition in District Court.*fn7
Before a habeas petitioner may file a second or successive petition in a district court, he must apply to the appropriate court of appeals for an order authorizing the district court to consider the application. Burton v. Stewart, 549 U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This provision "creates a 'gatekeeping' mechanism for the consideration of second or successive applications in district court." Felker v. Turpin, 518 U.S. 651, 657 (1996); see also Reyes v. Vaughn, 276 F.Supp.2d 1027, 1028-30 (C.D. Cal. 2003) (discussing applicable procedures in Ninth Circuit). A district court lacks jurisdiction to consider the merits of a second or successive habeas petition in the absence of proper authorization from a court of appeals. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998)), cert. denied, 538 U.S. 984 (2003).
The court of appeals may authorize the filing of a second or successive petition only if it determines that the petition makes a prima facie showing that at least one claim within the petition satisfies the requirements of 28 U.S.C.
Section 2244(b), i.e., that a claim which was not presented in a prior application (1) relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court; or (2) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence and the facts underlying the claim would be sufficient to establish that, but for constitutional errors, no reasonable factfinder would have found the applicant guilty of the underlying offense. Nevius v. McDaniel, 104 F.3d 1120, 1120-21 (9th Cir. 1997); Nevius v. McDaniel, 218 F.3d 940, 945 (9th Cir. 2000).
A second or subsequent habeas petition is not considered "successive" if the initial habeas petition was dismissed for a technical or procedural reason, rather than on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-487 (2000) (second habeas petition not "successive" if initial habeas petition dismissed for failure to exhaust state remedies); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-645 (1998) (second habeas petition not "successive" if claim raised in first habeas petition dismissed as premature); but see Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir.) (dismissal on procedural default grounds constitutes disposition on the merits rendering subsequent petition "second or successive"), cert. denied, 546 U.S. 884 (2005); Reyes, 276 F. Supp. 2d at 1029 (dismissal based on expiration of statute of limitations is adjudication of merits for purposes of determining whether subsequent petition is successive) (citations omitted).
Petitioner's Fourth Federal Petition was dismissed on the merits. Accordingly, like the Fifth Federal Petition, the Current Federal Petition is successive. Since petitioner filed the Current Federal Petition without authorization from the Ninth Circuit, this Court lacks jurisdiction to consider it.
IT IS THEREFORE ORDERED that the Current Federal Petition is denied and this action is dismissed without prejudice.