United States District Court, C.D. California
Michael Hawkins, Petitioner, Pro se, San Luis Obispo, CA.
OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
JAMES V. SELNA, United States District Judge.
On November 1, 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 conviction in Los Angeles County Superior Court in 2003. (Petition at 2 & Ex. C.)
Pursuant to Fed.R.Evid. 201, the Court takes judicial notice of the records in Petitioner's prior federal habeas corpus action in the Central District, Hawkins v. Hernandez, Case No. CV 06-7110-JVS (AGR) (" Hawkins I ")
On April 24, 2003, after being convicted of burglary, attempted robbery with the use of a deadly weapon, and assault with a deadly weapon, Petitioner was sentenced to 30 years to life. (Petition, Attached Petition for Writ of Habeas Corpus, Ex. A at 2, Ex. C.).
In Hawkins I, Petitioner challenged the same conviction and sentence. Id., Dkt. No. 23 at 2. A Report issued on the merits on July 27, 2007, recommending that the petition be denied and the action dismissed with prejudice. Id. at 20. On September 27, 2007, the Court adopted the Report and entered judgment dismissing the petition with prejudice. Hawkins I, Dkt. Nos. 28-29. On December 3, 2007, Petitioner filed a notice of appeal. Id., Dkt. No. 33. On August 4, 2008, the Ninth Circuit denied the request for a certificate of appealability. Id., Dkt. No. 42.
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 challenging the same conviction and sentence imposed by the same judgment of the state court as in Hawkins I .
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 ...