United States District Court, C.D. California
September 18, 2014
DAMON EDWARD SWANIGAN, Petitioner,
M. D. BITER, Warden, Respondent.
OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
R. GARY KLAUSNER, District Judge.
On September 10, 2014, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1998 conviction in Los Angeles County Superior Court. (Petition at 2.)
Pursuant to Fed.R.Evid. 201, the Court takes judicial notice of the records in Petitioner's prior federal habeas corpus actions in this district: Swanigan v. Pliler, CV 01-2485 RSWL (SGL) ("Swanigan I"); Swanigan v. Pliler, CV 02-2355 RSWL (SGL) ("Swanigan II"); Swanigan v. Pliler, CV 02-6784 ABC (SGL) ("Swanigan III"), and Swanigan v. Small, CV 08-4954-RSWL (AGR) ("Swanigan IV").
On August 29, 2002, in Swanigan III, Petitioner filed a petition for writ of habeas corpus by a person in state custody. Id., Dkt. No. 1. Petitioner challenged his 1998 conviction for two counts of robbery with enhancements. ( Id., Dkt. No. 10 at 1.)
On November 20, 2002, the Court entered Judgment denying the petition in Swanigan III and dismissing the action with prejudice as barred by the one-year statute of limitations. Id., Dkt. Nos. 10-11. On December 19, 2002, Petitioner filed a Notice of Appeal. Id., Dkt. No. 12. On July 30, 2003, the Ninth Circuit denied Petitioner's request for a certificate of appealability. Id., Dkt. No. 21.
On August 6, 2008, in Swanigan IV, the Court summarily dismissed the petition for lack of subject matter jurisdiction because it was a second or successive petition. ( Id., Dkt. No. 3.) Petitioner did not appeal.
The Petition was filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, the Court applies the AEDPA in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997).
The AEDPA provides, in pertinent part: "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." 28 U.S.C. § 2244(b)(3)(A). A district court does not have jurisdiction to consider a "second or successive" petition absent authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) ("When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.") (citation and quotation marks omitted).
Here, the Petition is a second or successive petition that challenges the same custody imposed by the same judgment of the state court as in Swanigan III. (Petition at 2.) It plainly appears from the face of the Petition that Petitioner has not received authorization from the Ninth Circuit Court of Appeals to file the Petition. This Court must, therefore, dismiss the Petition as a second or successive petition for which it lacks jurisdiction under 28 U.S.C. § 2244(b)(3). See Burton, 127 S.Ct. at 796-98.
Rule 4 of the Rules Governing Section 2254 Cases in the United States Courts provides that "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Here, summary dismissal is warranted.
IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction.