UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
March 1, 2013
WARDEN: R. DAVIS CHOWCHILLA VALLEY STATE PRISON, RESPONDENT.
The opinion of the court was delivered by: Charles F. Eick United States Magistrate Judge
REPORT AND RECOMMENDATION OF UNITED STATE MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Alicemarie H. Stotler, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.
Petitioner filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" on December 17, 2012. Respondent filed a "Motion to Vacate, etc." ("the Motion") on January 18, 2013. The Motion seeks a dismissal of the Petition on the grounds that the Petition is "second or successive," within the meaning of 28 U.S.C. section 2244(b). Petitioner failed to file opposition to the Motion within the allotted time. See Minute Order filed January 18, 2013.
The present Petition challenges the criminal judgment in Los Angeles Superior Court case No. BA170189 (Petition at 2). Petitioner previously challenged this same criminal judgment in a prior habeas corpus petition filed in this Court. See Delgado v. Garcia, CV 02-3590-AHS(E). On October 25, 2002, this Court entered Judgment in Delgado v. Garcia, CV 02-3590-AHS(E), denying and dismissing the prior petition with prejudice.
Section 2244(b) of Title 28, United States Code, requires that a petitioner seeking to file a "second or successive" habeas petition first obtain authorization from the Court of Appeals. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive authorization from Court of Appeals before filing "second or successive" petition, "the District Court was without jurisdiction to entertain [the petition]"); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) ("the prior-appellate-review mechanism set forth in § 2244(b) requires the permission of the court of appeals before 'a second or successive habeas application under § 2254' may be commenced"). A petition need not be repetitive to be "second or successive," within the meaning of 28 U.S.C. section 2244(b). See, e.g., Thompson v. Calderon, 151 F.3d 918, 920-21 (9th Cir.), cert. denied, 524 U.S. 965 (1998); Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. Mar. 6, 2008). Thus, the present Petition plainly is "second or successive," within the meaning of section 2244(b).
Petitioner evidently has not yet obtained authorization from the Ninth Circuit Court of Appeals to file the present Petition. Consequently, this Court cannot entertain the present Petition. See Burton v. Stewart, 549 U.S. at 157. The Petition should be denied and dismissed without prejudice.
For the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file objections as provided in the Local Rules Governing the Duties of Magistrate Judges and review by the District Judge whose initials appear in the docket number. No notice of appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the judgment of the District Court.
If the District Judge enters judgment adverse to Petitioner, the District Judge will, at the same time, issue or deny a certificate of appealability. Within twenty (20) days of the filing of this Report and Recommendation, the parties may file written arguments regarding whether a certificate of appealability should issue.
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