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Shawn Ballard v. California Department of Corrections

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


November 29, 2012

SHAWN BALLARD, PETITIONER,
v.
CALIFORNIA DEPARTMENT OF CORRECTIONS, RESPONDENT.

The opinion of the court was delivered by: Stephen V. WilsonUnited States District Judge

MEMORANDUM AND ORDER DISMISSING PETITION

Petitioner filed this petition for a writ of habeas corpus by a person in state custody on March 19, 2012. This is the third habeas corpus petition petitioner has filed in this Court challenging his 1995 conviction of car jacking and assault in case number BA097712. The first petition challenged his conviction and was denied on the merits. Case No. CV 98-1486-LGB(AJW).*fn1 Judgment denying that petition on the merits was entered on May 14, 1999. The second petition challenged only the sentence imposed as a result of the 1995 conviction. Case NO. 02-7321-SVW(AJW). The second petition was dismissed as successive, and the Ninth Circuit denied petitioner's request for permission to file a second petition.

In this third petition, petitioner again challenges his 1995 conviction, this time complaining that the trial court erred in sentencing him to a one year sentence enhancement. According to petitioner, the enhancement should have been stayed under California law. [Petition at 5 & attached pages].

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 also must 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).*fn2

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


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