The opinion of the court was delivered by: Christina A. Snyder United States District Judge
ORDER SUMMARILY DISMISSING ACTION AND DENYING CERTIFICATE OF APPEALABILITY
On August 24, 2012, the court received the instant action which has
been liberally construed and filed by the court as a petition for writ
of habeas corpus by a person in state custody ("Pet.").*fn1
For the following reasons, the Petition is subject to summary
dismissal without prejudice as successive and duplicative of a
By way of pertinent background, this is the third action filed by Petitioner in this court. In the first, Cooper v. Lamarque, CV 99-4457-CAS (CW), Petitioner raised several claims challenging a 1996 conviction in Los Angeles Superior Court (Case No. NA 027541) for possession of cocaine, a felony. [See Report and Recommendation of Magistrate Judge (docket no. 35, filed October 1, 2001), recommending denial of habeas relief on the merits.] Petitioner did not then challenge his sentence of twenty-five years to life under California's "Three Strikes" law. [See Id.] On October 30, 2001, judgment was entered denying the habeas petition and dismissing the action with prejudice. [Docket no. 40.] Both this court and the Ninth Circuit denied a certificate of appealability. [See docket nos. 47 and 51.]
A decade later, Petitioner filed a second habeas petition addressing his 1996 conviction, Cooper v. Gonzales, CV 11-2185-CAS(CW), which challenged on due process grounds the use of two prior convictions (Los Angeles Superior Court Case No. A62911) as "strikes" and Petitioner's consequent sentence imposed pursuant to the "Three Strikes" law. [See Petition (docket no. 1, filed March 15, 2011).] Concurrently, Petitioner filed a "Rule 60 (b) motion" which purported to seek relief from a December 2010 California Supreme Court decision denying on procedural grounds a state habeas petition challenging the legality of Petitioner's sentence. [See docket nos. 2, 6 at 2 n. 2.] On March 18, 2011, the court entered judgment in Case No. CV 11-2185-CAS(CW), dismissing the petition as successive; the court also denied the concurrent "Rule 60(b) motion"*fn3 and ordered that a certificate of appealability be denied. [Docket nos. 5-7.] The Ninth Circuit subsequently denied Petitioner's application for a certificate of appealability on June 27, 2012. [Docket no. 12.]
On July 30, 2012, Petitioner again filed a "Rule 60(b) motion" in Case No. CV 11-2185-CAS(CW)(docket no. 13), the underlying basis of which concerned Petitioner's due process challenge to the use of his prior convictions as "strikes" and which sought relief from the state court's rejection of that challenge on procedural grounds. This court denied that motion on the ground that it did not warrant reconsideration of either the conclusion that the petition in Case No. CV 11-2185-CAS(CW) was an unauthorized successive petition or the conclusion that a certificate of appealability was not merited. [See docket no. 14, filed August 23, 2012.] The court further noted that to the extent the Rule 60(b) motion sought to revisit the merits of the denial of habeas relief on Petitioner's 1996 conviction, the motion itself constituted a second or successive petition subject to the requirements of 28 U.S.C. § 2244(b)(3), which had yet to be satisfied. [Id.]
The instant Petition substantially duplicates the Rule 60(b) motion filed on July 30, 2012, and denied in Case No. CV 11-2185-CAS (CW) on August 23, 2012. Both that motion and the instant filing appear to challenge the state court's denials on procedural grounds of Petitioner's challenges to the use of certain prior convictions as "strikes." At base, the underlying relief Petitioner seeks in this action is the same as that requested in Case No. CV 11-2185-CAS(CW), which this court previously dismissed as successive to Petitioner's unsuccessful 1999 habeas petition challenging the same 1996 conviction at issue here. Absent prior authorization by the Ninth Circuit, this court lacks jurisdiction to consider a subsequent petition where the prior petition was denied on the merits even if the latter petition raises different claims. See 28 U.S.C. § 2244(b)(1)-(3); Gonzales v. Crosby, 545 U.S. 524, 529-30, 125 S. Ct. 2641, 162 L. Ed 2d 480 (2005).
Accordingly, because it plainly appears from the face and body of the instant Petition that the Petition is duplicative and successive, that relief is not now available, and that the defect noted cannot be cured by amendment, the petition should be summarily dismissed without prejudice. See generally, 28 U.S.C. § 2254(b); see also Cato v. United States, 70 F.3d 1103, 1105 n. 2 (9th Cir. 1995)(court has discretion to dismiss a pleading "that merely repeats pending or previously litigated claims").
Additionally, Rule 11 of the Federal Rules Governing Section 2254 Cases states that "the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant." A certificate of appealability ("COA") is not issued unless there is "a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). When a petition is, as here, dismissed on procedural grounds, a COA should be granted only if two elements are satisfied: (1) "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right"; and (2) "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S. Ct. 1595, 146 L. Ed. 2d 542 (2000). Here, there is nothing to indicate that jurists of reason would find anything debatable in the procedural ruling that the petition is duplicative and successive. Thus, the court need not decide whether the application states a valid constitutional claim. See Id. at 485.
Accordingly, it is ORDERED that the petition for writ of habeas corpus is dismissed without prejudice as duplicative and successive and that a certificate of appealability is denied.*fn4
Presented by: Dated: September 4, 2012
CARLA M. WOEHRLE United States ...