United States District Court, C.D. California
ORDER: DISMISSING PETITION AS SECOND OR SUCCESSIVE; DENYING A CERTIFICATE OF APPEALABILITY; AND REFERRING PETITION TO NINTH CIRCUIT PURSUANT TO NINTH CIRCUIT RULE 22-3(a)
MARGARET A. NAGLE, Magistrate Judge.
On August 19, 2014, Petitioner filed a habeas petition, pursuant to 28 U.S.C. § 2254 ("Petition"). The Petition stems from Petitioner's Los Angeles Superior Court conviction sustained in 1983, in Case No. A383323 (the "State Conviction").
Under the Rules Governing Section 2254 Cases in the United States District Courts, a habeas petition filed by a prisoner in state custody "must" be summarily dismissed "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court." Rule 4, 28 U.S.C. foll. § 2254. For the reasons set forth below, the Petition must be, and is, DISMISSED as second or successive, pursuant to 28 U.S.C. § 2244(b) and Rule 4.
On July 22, 2000, Petitioner filed a Section 2254 habeas petition in this district in Case No. CV 00-7466-GHK (MAN) (the "First Action"),  which raised two claims challenging the State Conviction. On June 3, 200, Judgment was entered dismissing the First Action, without prejudice, for reasons of comity due to Petitioner's pending state appellate proceedings. Petitioner did not appeal.
On March 21, 2003, following the conclusion of his state appeal, Petitioner filed a second Section 2254 habeas petition in this district in Case No. CV 03-2016-GHK (MAN) (the "Second Action"). The petition in the Second Action also challenged the State Conviction. On March 16, 2007, Judgment was entered denying the Second Action petition on its merits and dismissing the Second Action with prejudice. Petitioner appealed, and the Ninth Circuit issued a certificate of appealability limited to a specific issue (Case No. 07-55734). On April 3, 2009, the Ninth Circuit issued a Memorandum decision that affirmed the March 16, 2007 Judgment. On June 3, 2009, the Ninth Circuit denied Petitioner's request for rehearing and en banc review. Petitioner filed a petition for certiorari, and the Supreme Court denied his petition on November 9, 2009 (Case No. 09-6416).
The instant Petition also challenges the Second Conviction but raises a claim not alleged in his previous Section 2254 actions in this district. Although couched as three grounds for relief, Petitioner effectively raises is a single Brady claim, based on the prosecution's alleged failure to provide police reports to Petitioner's defense counsel. Petitioner alleges that this evidence is newly discovered and constitutes critical impeachment evidence with respect to a key prosecution witness.
The Ninth Circuit's dockets show that Petitioner has not filed an application seeking leave to raise his present claim through a second or successive Section 2254 petition.
State habeas petitioners generally may file only one federal habeas petition challenging a particular state conviction and/or sentence. See, e.g., 28 U.S.C. § 2244(b)(1) (courts must dismiss a claim presented in a second or successive petition when that claim was presented in a prior petition) and § 2244(b)(2) (with several exceptions not applicable here, courts must dismiss a claim presented in a second or successive petition when that claim was not presented in a prior petition). "A habeas petition is second or successive... if it raises claims that were or could have been adjudicated on the merits" in an earlier Section 2254 petition. McNabb v. Yates , 576 F.3d 1028, 1029 (9th Cir. 2009).
Even when Section 2244(b) provides a basis for pursuing a second or successive Section 2254 habeas petition, state habeas petitioners seeking relief in this district court must first obtain authorization from the Ninth Circuit before filing any such second or successive petition. 28 U.S.C. § 2244(b)(3). The Ninth Circuit "may authorize the filing of the second or successive [petition] only if it presents a claim not previously raised that satisfies one of the two grounds articulated in § 2242(b)(2)." Burton v. Stewart , 549 U.S. 147, 153, 127 S.Ct. 793, 796 (2007).
By the Second Action, Petitioner sought Section 2254 relief based on the same State Conviction at issue here. His earlier habeas petition was denied on its merits and dismissed with prejudice. Accordingly, the current Petition is second or successive within the meaning of Section 2244(b).
Petitioner's present challenge to his State Conviction is alleged to rest on newly discovered evidence. However, whether or not the Brady claim alleged in the Petition may, as a prima facie matter, satisfy the requisites of 28 U.S.C. § 2244(b)(2) is a question that must be presented to and resolved by the Ninth Circuit, not this District Court. Petitioner, however, has not sought or obtained permission from the Ninth Circuit to bring a second or successive Section 2254 petition raising the claim alleged in the instant Petition. This Court thus lacks jurisdiction to consider the Petition. 28 U.S.C. § 2244(b); see also Burton , 549 U.S. at 157, 127 S.Ct. at 799 (district court lacks jurisdiction to consider the merits of a second or successive petition absent prior authorization from the circuit court). Accordingly, IT IS ORDERED that: the Petition is DISMISSED; and Judgment shall be entered dismissing this action without prejudice.
In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the United States District Courts, the Court has considered whether a certificate of appealability is warranted in this case. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel , 529 U.S. 473, 484-85, 120 S.Ct. 1595, 1604 (2000). The Court concludes that a ...