UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
July 9, 2012
CAMARAY CARTER, PETITIONER,
ELVIN VALENZUELA, ACTING WARDEN,
The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge
MEMORANDUM DECISION AND ORDER
On June 14, 2012, Camaray Carter ("Petitioner"), a California State prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition") pursuant to 28 U.S.C. § 2254. The Court has conducted a preliminary review of the Petition, as required by Rule 4 of the Rules Governing Section 2254 Cases. Pursuant to Rule 4, the Court must summarily dismiss the Petition because "it plainly appears from the face of the petition and any exhibits annexed to it that [Petitioner] is not entitled to relief." R. 4 of the Rules Governing Section 2254 Cases; see also O'Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990) ("[R]ule 4 of the Rules Governing Section 2254 in the United States District Courts explicitly allows a district court to dismiss summarily the petition on the merits when no claim for relief is stated." (internal quotation marks omitted)).
In the Petition, Petitioner challenges his 1999 conviction and sentence. (Petition at 2). However, Petitioner previously filed a federal habeas petition (Case No. CV 08-05973 PSG (SS)) (the "Prior Petition"), which also challenged his 1999 conviction and sentence. *fn2
On October 23, 2009, the District Judge denied the Prior Petition as untimely and dismissed the action with prejudice. Petitioner appealed the judgment and on July 18, 2011, the U.S. Court of appeals for the Ninth Circuit denied Petitioner's request for a certificate of appealability. On June 19, 2012, the Court issued an Order To Show Cause Why This Action Should Not Be Dismissed As Successive (the "Order to Show Cause"). Petitioner was required to file a response to the Order to Show Cause by July 3, 2012 if he wished to contest the dismissal of this action. As of today, however, Petitioner has failed to file a response.
Petitioner, who is the only party to this action, has consented to the jurisdiction of the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). (See Docket No. 3). For the reasons *fn3 discussed below, it is recommended that the Petition be DENIED as successive and that this action be DISMISSED without prejudice.
II. PRIOR PROCEEDINGS
On July 28, 1999, a Los Angeles County Superior Court jury convicted Petitioner of criminal conspiracy in violation of California Penal Code ("Penal Code") section 182(a), attempted murder in violation of Penal Code sections 664 and 187, and robbery in violation of Penal Code section 211. (Petition at 2). On August 18, 1999, the trial court imposed an indeterminate term of thirty-five years to life in state prison. (Carter v. Uribe, Case No. CV 08-05973 PSG (SS)), Report and Recommendation ("R&R") at 2).
On September 28, 2000, the California Court of Appeal affirmed the trial court's judgment. (R&R at 2). Petitioner subsequently filed a petition for review in the California Supreme Court, which was denied on January 10, 2001. (Id.). Several years later, Petitioner filed a petition for writ of habeas corpus in the California Supreme Court, which was denied on June 11, 2008. (Id.).
On September 12, 2008, Petitioner filed the Prior Petition before this Court. In the Prior Petition, Petitioner raised three claims challenging his 1999 conviction and sentence. On October 23, 2009, the District Judge denied the Prior Petition as untimely and dismissed the action with prejudice. Petitioner appealed the judgment and on July 18, 2011, the U.S. Court of Appeals for the Ninth Circuit denied Petitioner's request for a certificate of appealability. Petitioner filed the instant Petition on June 14, 2012.
III. PETITIONER'S CLAIM
Petitioner's sole claim for federal habeas relief is that the California Supreme Court erroneously applied a procedural bar (untimeliness) to his state habeas petition. (Petition at 5).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), which effected amendments to the federal habeas statutes, applies to the instant Petition because Petitioner filed it after AEDPA's effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 L. Ed. 2d 481 (1997). Courts have recognized that the AEDPA generally prohibits successive petitions:
AEDPA greatly restricts the power of federal courts to award relief to state prisoners who file second or successive habeas corpus applications. If the prisoner asserts a claim that he has already presented in a previous federal habeas petition, the claim must be dismissed in all cases. And if the prisoner asserts a claim that was not presented in a previous petition, the claim must be dismissed unless it falls within one of two narrow exceptions. One of these exceptions is for claims predicated on newly discovered facts that call into question the accuracy of a guilty verdict. The other is for certain claims relying on new rules of constitutional law.
Tyler v. Cain, 533 U.S. 656, 661, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001) (citations omitted); see also Pizzuto v. Blades, 673 F.3d 1003, 1007 (9th Cir. 2012).
Here, the instant Petition is successive because it challenges the same 1999 conviction and sentence that Petitioner challenged in the Prior Petition. See, e.g., Burton v. Stewart, 549 U.S. 147, 153, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007) (holding that a petition was successive because it challenged "the same custody imposed by the same judgment of a state court" as a prior petition). Thus, Petitioner must obtain permission from the U.S. Court of Appeals for the Ninth Circuit before the instant Petition can proceed. See 28 U.S.C. § 2244(b)(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."); see also Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) ("Even if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek authorization from the court of appeals before filing his new petition with the district court.").
The Court's review of the docket does not demonstrate that Petitioner has either requested or received permission from the Ninth Circuit to file a successive petition. Accordingly, the instant Petition must be dismissed without prejudice to refiling after Petitioner obtains the necessary permission. See Burton, 549 U.S. at *fn4 153 ("In short, [the petitioner] twice brought claims contesting the same custody imposed by the same judgment of a state court. As a result, under AEDPA, he was required to receive authorization from the Court of Appeals before filing his second challenge. Because he did not do so, the District Court was without jurisdiction to entertain it."). The Court expressly advised Petitioner that the Petition was successive and provided him an opportunity to respond. Petitioner was required to file a response to the Order to Show Cause by July 3, 2012 if he wished to contest the dismissal of this action. As of today, however, Petitioner has failed to file a response.*fn5
IT IS ORDERED that: (1) the Petition is DENIED as successive; and (2) Judgment shall be entered dismissing this action without prejudice.