United States District Court, C.D. California
January 23, 2014
WESLEY CLARENCE MINTON, Petitioner,
CYNTHIA L. TAMPKINS, Warden, Respondent.
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION
JEAN ROSENBLUTH, Magistrate Judge.
On January 16, 2014, Petitioner filed a Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254, challenging his 2004 convictions and 13-year sentence in Riverside County Superior Court for various drug offenses. (Pet. at 2.) Petitioner's sole claim is that at one point during his trial, he was left in the courtroom with the jury while the court held an in camera conference in chambers with counsel, and he was prejudiced as a result because the bailiff stood near him with her hand on her gun, in full view of the jury; he further claims that the transcript of proceedings was altered to remove any reference to the in camera hearing. (Pet. at 4 & Attach. Mem.) Concurrently with the Petition, Petitioner filed an Election Regarding Consent to Proceed Before a United States Magistrate Judge, voluntarily consenting to having a magistrate judge "conduct all further proceedings in this case, " including "all dispositive... matters [and] entry of final judgment."
Petitioner previously filed a habeas petition in this Court challenging the same convictions, which was denied on the merits. See Minton v. Almager, No. EDCV 07-0029-GW (OP), 2010 WL 4705135 (C.D. Cal. May 12, 2010), accepted by 2010 WL 4702352 (C.D. Cal. Nov. 10, 2010). Petitioner appealed to the Ninth Circuit Court of Appeals, which refused to issue him a certificate of appealability. See Minton v. Almager, No. 10-56879 (9th Cir. May 24, 2012) (order denying certificate of appealability). It does not appear that Petitioner has ever asked for or received permission from the Ninth Circuit to file a second or successive petition.
The Antiterrorism and Effective Death Penalty Act of 1996 provides, in 28 U.S.C. § 2244(b), as follows:
(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application 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.
(3)(A) Before 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.
The pending Petition is a second or successive petition within the meaning of § 2244(b) because it challenges the same judgment of conviction as Petitioner's earlier habeas petition, the denial of which was affirmed by the Ninth Circuit when it refused to grant him a certificate of appealability. Under § 2244(b)(3)(A), Petitioner therefore was required to secure an order from the Ninth Circuit authorizing the filing of his current Petition. See Cooper v. Calderon , 274 F.3d 1270, 1274 (9th Cir. 2001). The cases and other authority cited by Petitioner in support of the merits of his claim are beside the point because this Court does not have jurisdiction to consider his Petition without the Ninth Circuit's prior authorization.
For the foregoing reasons, IT IS ORDERED that this action be summarily dismissed under Rule 4 of the Rules Governing § 2254 Cases in the U.S. District Courts.
LET JUDGMENT BE ENTERED ACCORDINGLY.