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Robert R. Newman v. Mcewan (Warden

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


November 2, 2012

ROBERT R. NEWMAN, PETITIONER,
v.
MCEWAN (WARDEN),
RESPONDENT.

The opinion of the court was delivered by: S. James Otero United States District Judge

ORDER DISMISSING PETITION AS SECOND OR SUCCESSIVE AND DENYING A CERTIFICATE OF APPEALABILITY

Petitioner, a California state prisoner, filed a habeas petition, pursuant to 28 U.S.C. § 2254, on October 25, 2012 ("Petition"). The Petition is the second habeas corpus petition filed by Petitioner in this Court stemming from his 2005 state court conviction and sentence.

Under the Rules Governing Section 2254 Cases in the United States District Courts, a habeas petition filed by a prisoner in state custody "must" be summarily dismissed "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court. . . ." Rule 4, 28 U.S.C. foll. § 2254. For the reasons set forth below, the Petition must be, and is, DISMISSED as second or successive, pursuant to 28 U.S.C. § 2244(b).

BACKGROUND

On June 26, 2007, Petitioner filed a Section 2254 habeas petition in Case No. CV 12-9205-SJO (MAN) (the "Prior Action"). The Prior Action petition arose out of the same 2005 state court conviction on which the present Petition is based. The Prior Action petition asserted: two claims based on alleged prosecutorial misconduct during closing argument and in failing to promptly disclose a witness's statement; one claim based on the alleged ineffective assistance of trial counsel in failing to object to a detective's testimony; one claim alleging that due process was violated by the admission of evidence of Petitioner's earlier possession of a gun; and one claim alleging a due process violation based on the trial court's failure to continue the trial at Petitioner's request. During the pendency of the Prior Action, Petitioner filed an interlocutory appeal, which was dismissed on August 11, 2011, for lack of jurisdiction (Case No. 11-56149).*fn1 The Prior Action was resolved adversely to Petitioner on the merits, and habeas relief was denied by Judgment entered on July 8, 2011. Petitioner appealed, and on October 19, 2012, the Ninth Circuit denied a certificate of appealability (Case No. 11-56583).

The instant Petition alleges one or more claims challenging Petitioner's 2005 conviction. Only one claim is alleged within the form Petition itself, i.e., that Petitioner's appellate and counsel provided ineffective assistance by failing to challenge the trial court's decision to admit into evidence a gun that a prosecution expert could not state, with certainty, was the murder weapon. (Petition at 5.) The various attachments to the Petition indicate that Petitioner may be asserting nine additional claims based on allegations that: gang membership evidence should not have been admitted; trial counsel provided ineffective assistance; witnesses provided perjured, "tainted," and inconsistent testimony; the prosecutor committed misconduct; and two witnesses lacked credibility. A review of the dockets for the Ninth Circuit shows that Petitioner has not sought or obtained leave to file a second or successive Section 2254 habeas petition asserting any of the claims alleged in the instant Petition or, indeed, any claims at all.

DISCUSSION

State habeas petitioners generally may file only one federal habeas petition challenging a particular state conviction and/or sentence. See, e.g., 28 U.S.C. § 2244(b)(1) (courts must dismiss a claim presented in a second or successive petition when that claim was presented in a prior petition) and § 2244(b)(2) (with several exceptions not applicable here, courts must dismiss a claim presented in a second or successive petition when that claim was not presented in a prior petition). "A habeas petition is second or successive . . . if it raises claims that were or could have been adjudicated on the merits" in an earlier Section 2254 petition. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).

In those instances when Section 2244(b) provides a basis for pursuing a second or successive Section 2254 habeas petition, state habeas petitioners seeking relief in this district court must first obtain authorization from the Ninth Circuit before filing any such second or successive petition. 28 U.S.C. § 2244(b)(3). The Ninth Circuit "may authorize the filing of the second or successive [petition] only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2242(b)(2)." Burton v. Stewart, 549 U.S. 147, 153, 127 S. Ct. 793, 796 (2007).

By the Prior Action, Petitioner sought Section 2254 relief based on the same 2005 conviction at issue here, and his habeas petition was resolved adversely to him on its merits. His present challenge to the validity of his 2005 conviction does not rest on newly-discovered evidence or a new rule of constitutional law. Accordingly, the current Petition is second or successive within the meaning of Section 2244(b).*fn2

As Petitioner has not obtained permission from the Ninth Circuit to bring a second or successive petition, this Court lacks jurisdiction to consider the instant Petition. 28 U.S.C. § 2244(b); see also Burton, 549 U.S. at 157, 127 S. Ct. at 799 (district court lacks jurisdiction to consider the merits of a second or successive petition absent prior authorization from the circuit court). Accordingly, IT IS ORDERED that: the Petition is DISMISSED; and Judgment shall be entered dismissing this action without prejudice.

In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether a certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484-85, 120 S. Ct. 1595, 1604 (2000). The Court concludes that a certificate of appealability is unwarranted, and thus, a certificate of appealability is DENIED.

IT IS SO ORDERED.

PRESENTED BY: MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE


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