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Vantrae Gregory v. Leland Mcewen

February 5, 2013


The opinion of the court was delivered by: Honorable Stephen V. Wilson United States District Judge


Petitioner initiated this action on June 21, 2012, by filing a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (the "Petition") in this Court. The Petition challenges petitioner's 1986 state murder conviction in the Los Angeles County Superior Court. (Petition at 2). On September 6, 1994, petitioner filed an earlier habeas petition in this Court, Case No. CV 94-6047-SVW (JR), in which he challenged the same conviction. (See Petition in Case No. CV 94-6047-SVW (JR), at 3). The 1994 petition was dismissed on the merits with prejudice pursuant to the Judgment entered on January 8, 1996. (See Judgment in Case No. CV 94-6047-SVW (JR)).*fn1

A habeas petition is second or successive if it raises claims that were or could have been adjudicated on their merits in a previous petition. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); see also Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam). "A disposition is 'on the merits' if the district court either considers and rejects the claims or determines that the underlying claim will not be considered by a federal court." McNabb, 576 F.3d at 1029.

The Antiterrorism and Effective Death Penalty Act of 1996 ("the AEDPA") provides that a claim presented in a second or successive federal habeas petition that was not presented in a prior petition shall be dismissed unless:

(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or

(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and

(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2244(b)(2)(A), (B).

Furthermore, "[b]efore a second or successive application ... 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).

In his 1994 federal habeas challenge, petitioner raised seven claims challenging his 1986 conviction. (See Report and Recommendation, Case No. CV 94-6047-SVW (JR), at 6). As mentioned above, the action was dismissed on the merits with prejudice. (See Judgment; Order Adopting Findings, Conclusions and Recommendations of United States Magistrate Judge, Case No. CV 94-6047-SVW (JR)). Petitioner's subsequent petition for a certificate of probable cause was denied by this Court on May 17, 1996.

In the instant Petition, petitioner again challenges his 1986 conviction, and asserts as his sole ground for relief that his due process rights were violated when the prosecutor allowed two witnesses to give false testimony. (Petition at 5, 9). Even if it were found that the claims raised in the instant Petition satisfy 28 U.S.C. § 2244(b)(2)(A) or § 2244(b)(2)(B),*fn2 petitioner is still required to seek authorization from the Ninth Circuit before filing a successive petition. 28 U.S.C. § 2244(b)(3)(A). Because petitioner has not presented any documentation showing that he has filed the requisite motion in the Ninth Circuit and received the requisite authorization to file a successive petition, the Court concludes that it is without jurisdiction to entertain the Petition under 28 U.S.C. § 2244(b). Burton v. Stewart, 549 U.S. 147, 153, 127 S. Ct. 793, 798, 166 L.Ed.2d 628 (2007) (AEDPA requires petitioner to receive authorization from the Court of Appeals before filing a second habeas petition); Cooper, 274 F.3d at 1274 ("'When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.'"). Absent the requisite authorization from the Ninth Circuit allowing a successive petition, the instant Petition must be dismissed without prejudice. See Reyes v. Vaughn, 276 F.Supp.2d 1027, 1029-30 (C.D. Cal. 2003) (dismissing successive petition without prejudice to petitioner's right to seek authorization from the Ninth Circuit).*fn3

IT IS THEREFORE ORDERED that this action be dismissed ...

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