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Alexander v. Ground

United States District Court, Ninth Circuit

January 7, 2014

TERRY ALEXANDER, Petitioner,
v.
RANDY GROUND, WARDEN, Respondent.

ORDER OF DISMISSAL

STEPHEN V. WILSON, District Judge.

Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" on December 27, 2013. The Petition challenges Petitioner's 2011 conviction and sentence in Los Angeles Superior Court (Petition at 2). Petitioner previously challenged this same conviction and sentence in a prior habeas corpus petition filed in this Court. See Alexander v. Grounds, CV 13-1667-SVW(E). On December 4, 2013, this Court entered Judgment in Alexander v. Grounds, CV 13-1667-SVW(E), denying and dismissing the prior petition on the merits with prejudice.

The Court must dismiss the present Petition in accordance with 28 U.S.C. section 2244(b) (as amended by the "Antiterrorism and Effective Death Penalty Act of 1996"). Section 2244(b) 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). Petitioner evidently has not yet obtained authorization from the Ninth Circuit Court of Appeals. Consequently, this Court cannot entertain the present Petition. See Burton v. Stewart , 549 U.S. at 157; see also Dews v. Curry, 2008 WL 590476, at *3 (E.D. Cal. Feb. 29, 2008) (without Court of Appeals' authorization, "this court lacks jurisdiction to consider the petition").

For all of the foregoing reasons, the Petition is denied and dismissed without prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.


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