United States District Court, C.D. California
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION; DENYING A CERTIFICATE OF APPEALABILITY
GARY A. FEESS, District Judge.
DISMISSAL OF HABEAS PETITION WITHOUT PREJUDICE
On or about September 25, 2014, petitioner Donald Hamilton ("Petitioner") constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition"). Petitioner challenges a conviction and sentence imposed by the Los Angeles County Superior Court in Case No. A393446 in 1984.
The Court takes judicial notice of its files with respect to four prior habeas petitions (the "Prior Petitions") Petitioner filed in this Court, as follows: on or about September 15, 1988, Case No. CV 88-5557 DT (B) ("First Federal Habeas Petition"); on or about May 14, 1991, Case No. CV 91-2618 WJR (B) ("Second Federal Habeas Petition"); on or about May 29, 1992, Case No. CV 92-3251 WMB (B) ("Third Federal Habeas Petition"); and on or about September 14, 1995, Case No. CV 95-6133 WJR (VAP) ("Fourth Federal Habeas Petition"). The Court notes that the Prior Petitions were directed to the same conviction and/or sentence sustained in Los Angeles County Superior Court Case No. A393446.
On May 23, 1989 judgment was entered dismissing the First Federal Habeas Petition on the merits with prejudice. On October 30, 1991, the Second Federal Habeas Petition was dismissed without prejudice for failure to exhaust. On January 12, 1993, the Third Federal Habeas was dismissed with prejudice for abuse of the writ. The Ninth Circuit affirmed the dismissal of the Third Federal Habeas Petition as an abuse of the writ in an unpublished opinion on August 29, 1994. On May 20, 1996, Judgment was entered dismissing the Fourth Federal Habeas Petition with prejudice as an abuse of the writ. The Ninth Circuit dismissed the subsequent appeal of the Judgment for failure to meet the standard for obtaining a Certificate of Appealability.
The Petition now pending is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132, 110 Stat. 1214) ("the Act") which became effective April 24, 1996. Section 106 of the Act amended 28 U.S.C. § 2244(b) to read, 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."
Therefore, because the Petition now pending challenges the same conviction as Petitioner's Prior Petitions, it constitutes a second and/or successive petition within the meaning of 28 U.S.C. § 2244(b). To the extent 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). To the extent Petitioner seeks to pursue claims not previously asserted, 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 ...