United States District Court, C.D. California
OPINION and ORDER
REFERRING THE PETITION TO THE U.S. COURT OF APPEALS PER NINTH CIRCUIT RULE
22-3(A); DISMISSING HABEAS PETITION WITHOUT PREJUDICE FOR LACK OF SUBJECT-MATTER
JURISDICTION; DENYING A CERTIFICATE OF APPEALABILITY
VALERIE BAKER FAIRBANK, Senior District Judge.
This is a pro se state prisoner's action for habeas corpus relief pursuant to 28 U.S.C. section 2254. For the reasons that follow, the Court will dismiss the petition without prejudice for lack of subject-matter jurisdiction and deny a certificate of appealability ("COA"). In compliance with Ninth Circuit Rule, the Court will also refer the petition to the Circuit for consideration as an application for leave to file a second federal habeas petition challenging the same conviction.
On February 26, 2006, a jury convicted petitioner of one count of first-degree murder, two counts of attempted premeditated and deliberate murder, and possession of a firearm by a felon. In addition the jury found firearm allegations to be true. Petitioner was sentenced to two terms of life in state prison with the possibility of parole on counts 2 and 3, 25 years to life on count 1, and multiple terms of 25 years to life on the firearm enhancements.
The instant petition, filed on February 26, 2014, challenges the aforementioned February 26, 2006 L.A. County Superior Court Case No. MA029006 conviction and sentence.
The Court takes judicial notice of its files with respect to a prior habeas petition ("the prior petition") which petitioner filed in this Court on May 11, 2011 (Case No. CV 11-04330-VBF-FFM). The prior petition was directed to the same conviction and sentence sustained in L.A. County Superior Court Case No. MA029006. Respondent filed a motion to dismiss, petitioner filed an opposition brief, and respondent did not file a reply. On February 28, 2012 the Magistrate issued a Report & Recommendation ("R&R") recommending that the petition be dismissed with prejudice as time-barred, and petitioner filed an objection. On March 27, 2012 this Court issued an Order overruling petitioner's objection, adopting the R&R, and dismissing the petition with prejudice as time-barred; a final judgment in favor of respondent; and an Order denying a certificate of appealability ("COA"). On February 24, 2014, petitioner filed a Fed.R.Civ.P. 60(b) motion for relief from that March 2012 judgment. Just days ago, this Court denied petitioner's motion for relief from judgment as untimely under Fed.R.Civ.P. 60© and declined to issue a COA. See Adams v. Hedgpeth, No. CV 11-04330-VBF-FFM Doc. 41 (C.D. Cal. Apr. 4, 2014) (Fairbank, J.).
The pending petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132, 110 Stat. 1214) ("AEDPA") which became effective April 24, 1996. As amended by AEDPA, 28 U.S.C. § 2244(b) now reads in pertinent part 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.
"Although AEDPA does not define the terms second or successive, ' the Supreme Court and the Ninth Circuit... have interpreted the concept incorporated in this term of art as derivative of the abuse of the writ doctrine developed in pre-AEDPA cases.'" Jointer v. Gonzales, 2014 WL 935293, *2 (C.D. Cal. Mar. 10, 2014) (quoting Allen v. Ornoski, 435 F.3d 946, 956 (9th Cir. 2006)). Accordingly, a habeas petition is second or successive if it raises claims that were raised, or that could have been adjudicated on the merits in a previously filed petition. See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).
Petitioner's prior petition was denied on the ground that it was barred by the one-year period of limitation, and such a dismissal is considered an adjudication on the merits for purposes of determining whether a subsequent petition is successive. See Plaut v. Spendthrift Farm, 514 U.S. 211, 228, 115 S.Ct. 1447, 131 L.Ed.2d 328 (1995) ("The rules of finality, both statutory and judge made, treat a dismissal on statute-of-limitations grounds the same way they treat a dismissal for failure to state a claim, for failure to prove substantive liability, or for failure to prosecute: as a judgment on the merits.") (citing Fed.R.Civ.P. 41(b) and U.S. v. Oppenheimer, 242 U.S. 85, 87-88, 37 S.Ct. 68, 61 L.Ed. 161 (1916)); McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009); Ellingson v. Burlington Northern Inc., 653 F.2d 1327, 1330 n.3 (9th Cir. 1981) ("A judgment based on the statute of limitations is on the merits.'") (citation omitted); see, e.g., Nelson v. Brown, 2014 WL 1096189, *6 (S.D. Cal. Mar. 19, 2014) ("[A] prior habeas petition dismissed... for failure to comply with the statute of limitations constitutes a disposition on the merits.") (citations omitted).
Therefore, because the pending petition challenges the same conviction as petitioner's prior petition in CV 11-4330, it constitutes a second-or-successive petition within the meaning of 28 U.S.C. § 2244(b). To the extent that petitioner asserts the same claims he previously asserted, those claims are barred by § 2244(b)(1). See, e.g., Timmons v. Spearman E., 2014 WL 1340224, *2 (C.D. Cal. Apr. 3, 2014) ("[T]o the extent that Petitioner is now purporting to raise claims previously raised in [prior federal habeas ...