The opinion of the court was delivered by: Dolly M. Gee United States District Judge
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION
On April 20, 2012, Alex David Valle (hereinafter referred to as "Petitioner") filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" ("Petition"). Petitioner was convicted in Los Angeles County Superior Court Case No. BA150276 on March 6, 1998 of assault on a transit passenger in violation of California Penal Code ("PC") § 245.2. The jury found true that Petitioner inflicted great bodily injury in the commission of the offense. Petitioner was sentenced pursuant to the Three Strikes Law (PC § 1170.12) to state prison for 30 years to life. (Petition at 1.)
It appears from the face of the Petition that it is directed to the same 1998 Los Angeles County Superior Court conviction as prior habeas petitions filed by Petitioner in this Court on April 23, 2001, in Alex David Valle v. M. Knowles, Case No. CV 01-03747-AHM (VBK)*fn1 and on February 13, 2006, in Alex David Valle v. Rosanne Campbell, Case No. CV 06-00826-AHM (VBK). On April 1, 2002, Judgment was entered in Case No. CV 01-03747-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 6, 2007, Judgment was entered in Case No. CV 06-00826-AHM (VBKx), 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.
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--
(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."
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.
LET JUDGMENT BE ENTERED ...