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Jornay Rechurnd Rodriguez v. E. Valensuela

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


August 29, 2012

JORNAY RECHURND RODRIGUEZ, PETITIONER,
v.
E. VALENSUELA, WARDEN,
RESPONDENT.

The opinion of the court was delivered by: George H. Wu United States District Judge

MEMORANDUM AND ORDER DISMISSING PETITION

Background*fn1

In 1997, petitioner was convicted of first degree murder in Los Angeles County Superior Court Case No. BA131909. [Petition at 2]. He was sentenced to state prison for a term of 25 years to life. [Petition at 2].

In 2002, petitioner filed a habeas petition in this Court challenging his 1997 conviction. Case No. CV 02-8484-FMC(CT). The petition was denied on the merits on May 7, 2003. The Ninth Circuit Court of Appeals denied petitioner's application for a certificate of appealability. Petitioner filed a second petition challenging his 1997 conviction. Case No. CV 08-6806(FMC)(CT). That petition was dismissed as successive on November 4, 2008.

The present petition was filed on August 23, 2012. Like the petition previously filed by petitioner, this petition challenges the validity of petitioner's 1997 conviction and sentence in the Los Angeles County Superior Court. [Petition at 2].

A federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). A federal court must also dismiss a second or successive petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, retroactive, constitutional right or (2) the factual basis of the claim was not previously discoverable through due diligence, and those new facts establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). It is not the district court, however, that decides whether a second or successive petition meets the requirements permitting a petitioner to file a second or successive petition. Rather, "[b]efore 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." 28 U.S.C. § 2244(b)(3)(A); see Felker v. Turpin, 518 U.S. 651, 656-657 (1996). Absent authorization from the Court of Appeals, this Court lacks jurisdiction over this second or successive petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir.), cert. denied, 519 U.S. 1102 (1997).

Because petitioner has not obtained leave from the Court of Appeals to file a successive petition, this court lacks jurisdiction to consider it. Accordingly, the petition for a writ of habeas corpus is dismissed for lack of jurisdiction.

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION

Case No. CV 12-7277-GW(AJW)

JORNAY RECHURND RODRIGUEZ, Petitioner, v. E. VALENZUELA, Warden, Respondent.

JUDGMENT

It is hereby adjudged that the petition for a writ of habeas corpus is dismissed for lack of jurisdiction.

Dated:

George H. Wu United States District Judge


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