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Parsee v. Biter

United States District Court, C.D. California

May 31, 2014

JAMES PARSEE, Petitioner,
v.
M.D. BITER, Warden, Respondent.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

CHARLES F. EICK, Magistrate Judge.

This Report and Recommendation is submitted to the Honorable Andrew J. Guilford, United States District Judge, pursuant to 28 U.S.C. section 636 and General Order 05-07 of the United States District Court for the Central District of California.

PROCEEDINGS

On August 7, 2013, Petitioner, a state prisoner, filed a "Petition for Writ of Habeas Corpus." On November 4, 2013, Respondent filed a "Motion to Vacate Order Requiring Answer" ("the Motion"). The Motion asserts that the Petition must be dismissed as "second or successive" within the meaning of 28 U.S.C. section 2244(b). Petitioner filed a Reply to the Motion on March 10, 2014.

BACKGROUND

The present Petition challenges a 2003 Compton Superior Court criminal judgment against Petitioner. Petitioner previously challenged this same criminal judgment in a federal habeas petition filed in 2006 and denied with prejudice in 2007. See Parsee v. Poulos, CV 06-1810-AG(E).

DISCUSSION

The Court should dismiss the present Petition in accordance with 28 U.S.C. section 2244(b). 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 the petitioner did not receive authorization from the Court of Appeals 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"); see also Rule 9 of Rules Governing Section 2254 Cases in the United States District Courts. 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 (see Petition at ¶ 12). Consequently, this Court cannot entertain the present Petition. See Burton v. Stewart , 549 U.S. at 157; see also Dews v. Curry, 2008 WL 590476, at *3 (E.D. Cal. Feb. 29, 2008) (without Court of Appeals' authorization, "this court lacks jurisdiction to consider the petition").

RECOMMENDATION

For all of the foregoing reasons, IT IS RECOMMENDED that the Court issue an Order: (1) accepting and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying and dismissing the Petition without prejudice.


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