United States District Court, C.D. California
February 4, 2014
EVERETT TOY, Petitioner,
J. SOTO, Warden, Respondent.
ORDER OF DISMISSAL
CORMAC J. CARNEY, District Judge.
On January 27, 2014, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody, pursuant to 28 U.S.C. §2254 ("Petition") (Docket Entry No. 1).
The Petition challenges the 14 years-and-four-month sentence Petitioner received following his convictions for first degree burglary, grand theft auto and vehicle theft (Cal. Penal Code §§ 459, 487; Cal. Vehicle Code § 10851), and the trial court's finding that Petitioner had one prior serious felony conviction.
Although Petitioner did not identify his prior federal habeas petitions in response to question 9 of the form Petition, Petitioner has filed five prior petitions that have been dismissed by this Court following a consideration of the merits or as second and/or successive petitions filed without permission obtained from the Ninth Circuit Court of Appeals.
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. § 2244(b). See, e.g., Thompson v. Calderon , 151 F.3d 918, 920-21 (9th Cir. 1998); Calbert v. Marshall , 2008 WL 649798, at *2-4 (C.D. Cal. Mar. 6, 2008).
On January 13, 2014, Petitioner filed an application for leave to file a second or successive petition with the Ninth Circuit Court of Appeals. To date, the Ninth Circuit has not ruled on the application. Because Petitioner did not obtain authorization from the Ninth Circuit before filing the instant Petition, this Court cannot entertain the present Petition. See Burton , 549 U.S. at 157.
For all of the foregoing reasons, the Petition is denied and dismissed without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.