United States District Court, C.D. California
OPINION and ORDER
VALERIE BAKER FAIRBANK, Senior District Judge.
Overruling the Petitioner's Objections; Adopting the R&R as Modified; Referring the Petition to the U.S. Court of Appeals per Ninth Circuit Rule 22-3(a); Dismissing the Petition without Prejudice for Lack of Subject-Matter Jurisdiction; Denying a Certificate of Appealability
This is a pro se state prisoner's action for habeas corpus relief pursuant to 28 U.S.C. § 2254. The Magistrate Judge has issued a Report and Recommendation ("R&R") recommending that the petition be dismissed with prejudice because petitioner has not obtained leave from the U.S. Court of Appeals for the Ninth Circuit ("the Circuit") to file a second-or-successive habeas petition attacking the same conviction or sentence. First, the Court will supplement the R&R by referring the petition to the Circuit for consideration as an application for leave to file a second-or-successive habeas petition, as required by Ninth Circuit Rule. Second, for the reasons that follow, the Court will followed the recommendation to dismiss the petition for lack of subject-matter jurisdiction; the dismissal, however, will be without prejudice, not with prejudice as the R&R urges. Third, the Court will deny a certificate of appealability ("COA"). Finally, the Court will enter judgment by separate document as required by FED. R. CIV. P. 58.
Two Prior Federal Habeas Petitions. In 1982, petitioner was convicted in L.A. County Superior Court case number A366030 of conspiracy to commit murder. In 1989, petitioner filed a section 2254 habeas petition in this Court challenging that conviction; another member of this court denied that petition and dismissed it with prejudice in 1990, and the Ninth Circuit affirmed in 1992. In 1993, petitioner filed another section 2254 habeas petition in this court challenging that same 1983 conviction; in 1994, another member of this court dismissed that second petition with prejudice, and both the district court and the Ninth Circuit denied a certificate of probable cause (the predecessor to the certificate of appealability).
The Current, Third Federal Habeas Petition. The instant petition, filed on October 2, 2013, challenges the same aforementioned 1983 L.A. County Superior Court Case No. A366030 conviction and sentence. The respondent has moved to dismiss the petition on the ground that petitioner has failed to show that he has obtained leave from the Ninth Circuit to file a second-or-successive federal habeas petition challenging the same conviction and/or sentence, and the Magistrate Judge rightly recommends granting the motion to dismiss.
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.
Because the petition now pending challenges the same conviction as his two prior federal habeas petitions, it constitutes a second and/or successive petition within the meaning of 28 U.S.C. § 2244(b). To the extent that petitioner seeks to pursue the same claims he previously asserted, the petition is barred by the provisions of 28 U.S.C. § 2244(b)(1). See, e.g., Timmons v. Spearman E., 2014 WL 1340224, *2 (C.D. Cal. Apr. 3, 2014) (Real, J.) ("[T]o the extent that Petitioner is now purporting to raise claims previously raised in [prior federal habeas petition], § 2241(b)(1) compels dismissal of those claims."); Myers v. Curry, 2008 WL 4195934, *2 (C.D. Cal. Sept. 2, 2008) (Fairbank, J.) ("To the extent the instant Petition merely asserts the same claim that was previously asserted, the petition is subject to dismissal pursuant to § 2244(b)(1).").
To the extent that petitioner asserts claims not asserted in his two prior federal habeas petitions, it was incumbent on him under § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing the district court to consider the petition, prior to his filing of it in this court. "To obtain leave to file, petitioner would have shouldered the burden of satisfying a Circuit panel that his petition satisfies the requirements of 28 U.S.C. § 2255(h)", Jackson v. Hedgpeth, 2013 WL 3864216, *3 (C.D. Cal. July 24, 2013), which provides as follows:
A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate ...