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 25, 2014, Petitioner filed a habeas petition, pursuant to 28 U.S.C. § 2254 ("Petition"). The Petition stems from Petitioner's San Bernardino County Superior Court conviction sustained in 1998, in Case No. FSB11745 (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
On September 11, 2006, Petitioner filed a Section 2254 habeas petition in this district in Case No. CV 06-984-GHK (MAN) (the "First Action"),  which challenged the State Conviction. On December 3, 2007, Judgment was entered dismissing the First Action, with prejudice, on the ground that it was untimely. Petitioner appealed, and on August 19, 2009, the Ninth Circuit denied a certificate of appealability (Case No. 08-55306). On April 2, 2010, the Ninth Circuit denied Petitioner's request for rehearing. 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 October 18, 2010 (Case No. 10-6147).
The instant Petition also challenges the State Conviction. He raises versions of the same two claims previously raised in the First Action petition and three additional claims, based on: the jury's failure to consider evidence of mitigating mental states; the ineffective assistance of trial counsel during plea negotiations; and the ineffective assistance of counsel on appeal.
The Ninth Circuit's dockets show that Petitioner has not filed an application seeking leave to raise his present claims 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 First Action, Petitioner sought Section 2254 relief based on the same State Conviction at issue here. His earlier habeas petition was resolved adversely to him, because it was untimely. The untimeliness of the First Action "presents a permanent and incurable' bar to federal review, " and the dismissal of the First Action "constitutes a disposition on the merits" for purposes of Section 2244(b). McNabb , 576 F.3d at 1030 (citation omitted). The present Petition, thus, is second or successive within the meaning of Section 2244(b). See id. (holding "that dismissal of a section 2254 habeas petition for failure to comply with the statute of limitations renders subsequent petitions second or successive for purposes of" Section 2244(b)); in accord Murray v. Greiner , 394 F.3d 78, 79 (2d Cir. 2005); Altman v. Benik , 337 F.3d 764, 766 (7th Cir. 2003).
Petitioner asserts that some of the claims alleged in the instant Petition rest on newly discovered evidence. The Court notes this allegedly "newly discovered evidence" appears to be the same evidence that served as the basis for the claims alleged in the First Action petition, which was filed almost eight years ago. In any event, whether or not the claims 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 certificate of appealability is unwarranted, and thus, a certificate of appealability is DENIED.
IT IS FURTHER ORDERED that the Clerk of the Court shall refer the Petition to the Ninth Circuit pursuant ...