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Vaught v. Paramo

United States District Court, Ninth Circuit

January 15, 2014

ELBERT LEE VAUGHT, Petitioner,
v.
WARDEN PARAMO, Respondent.

ORDER OF DISMISSAL

DAVID O. CARTER, District Judge.

Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" on January 13, 2014. The Petition challenges the criminal judgment in Orange County Superior Court case No. 96-HFO-215 (Petition at 2). Petitioner previously challenged this same judgment in a prior habeas corpus petition filed in this Court. See Vaught v. Gomez, SA CV 99-284-GLT(E). On May 28, 1999, this Court entered judgment in Vaught v. Gomez, SA CV 99-284-GLT(E), denying and dismissing the prior petition 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 Appeal 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.[1]

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

LET JUDGMENT BE ENTERED ACCORDINGLY.


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