The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable A. Howard Matz, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on August 13, 2012. The Petition alleges that Petitioner is actually innocent of the crime of which he was convicted in Los Angeles Superior Court in 1993.
Petitioner previously filed two habeas corpus petitions in this Court challenging this same 1993 conviction. On July 8, 1999, Petitioner filed a petition in Morris v. Larson, CV 99-6991-AHM (E).*fn1
On March 30, 2000, the Magistrate Judge issued a Report and Recommendation recommending denial and dismissal of the petition in Morris v. Larson with prejudice.*fn2 On July 21, 2000, the District Judge issued an Order adopting the Report and Recommendation. Judgment was entered on July 25, 2000, denying and dismissing the petition with prejudice.*fn3 The Court of Appeals for the Ninth Circuit affirmed the judgment and the United States Supreme Court denied certiorari. See Morris v. Attorney General of State of Calif., 36 Fed. App'x 235 (9th Cir. 2002), cert. denied, 537 U.S. 857 (2002).
On January 18, 2006, Petitioner filed a petition in Morris v. Warden, CV 06-283-AHM (E).*fn4 On February 6, 2006, the Magistrate Judge issued a Report and Recommendation recommending denial and dismissal of the petition without prejudice on the grounds that the petition was second or successive within the meaning of 28 U.S.C. § 2244(b) and that Petitioner had not obtained the requisite authorization from the Ninth Circuit Court of Appeals. See 28 U.S.C. § 2244(b)(3)(A).*fn5 On March 14, 2006, the District Judge issued an Order adopting the Report and Recommendation. Judgment was entered on March 15, 2006.
Section 2244(b) of Title 28, United States Code, requires that a petitioner seeking to file a "second or successive" habeas petition first obtain authorization from the court of appeals. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive authorization from Court of Appeals before filing "second or successive" petition, "the District Court was without jurisdiction to entertain [the petition]"); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) ("the prior-appellate-review mechanism set forth in § 2244(b) requires the permission of the court of appeals before 'a second or successive habeas application under § 2254' may be commenced"); 28 U.S.C. § 2244(b)(3)(A).
Petitioner does not deny that the present Petition is second or successive to the petition in Morris v. Larson, CV 99-6991-AHM (E). Rather, Petitioner contends that his alleged actual innocence "exempts" Petitioner from the procedural requirements for second or successive petitions, including the statutory obligation to obtain Ninth Circuit authorization to file a second or successive petition (see Petition, p. 6 n.3). This contention lacks merit. See Williams v. Thaler, 602 F.3d 291, 305 (5th Cir.), cert. denied, 131 S. Ct. 506 (2010) (district court lacked jurisdiction to consider actual innocence claim in second or successive petition in the absence of circuit court authorization); Williams v. Schultz, 393 Fed. App'x 938, 940 (3d Cir. 2010) (inmate seeking to file second or successive motion pursuant to 28 U.S.C. section 2255 asserting claim of actual innocence must obtain circuit court authorization); Morgan v. Ryan, 2011 WL 6296763, at *4 (D. Ariz. Nov. 28, 2011), adopted, 2011 WL 6296758 (D. Ariz. Dec. 16, 2011) (even where petitioner asserts claim of actual innocence, "leave of the Court of Appeals is required to maintain the successive petition") (citation omitted); Martin v. Neotti, 2010 WL 4219898, at *1 (C.D. Cal. Oct. 14, 2010) (rejecting argument that actual innocence claim provided exception to statutory provisions governing successive petitions, including requirement that petitioner obtain circuit authorization); Randall v. People of the State of Calif., 2009 WL 1371840, at *1 (C.D. Cal. May 15, 2009) ("Even if Petitioner contends that he should be permitted to file a successive petition based on his claim that he is actually innocent. . . . , he cannot proceed with such claim without authorization from the appropriate court of appeals."); see also In re Davis, 565 F.3d 810, 824-25 (11th Cir. 2009) (rejecting "equitable" exception to statutory requirements for second or successive petitions based on petitioner's alleged innocence; section 2244(b)(2)(B) contains its own equitable remedy,*fn6 and "[neither] Congress nor the courts ever have hinted that an additional equitable exception to § 2244(b)'s ban on second or successive federal habeas petitions exists") (original emphasis).
Petitioner evidently has not yet obtained authorization from the Ninth Circuit Court of Appeals to file the present Petition. Consequently, this Court cannot entertain the present Petition. See Burton v. Stewart, 549 U.S. at 157. The Petition should be denied and dismissed without prejudice.
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) approving and accepting this Report and Recommendation; and (2) denying and ...