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Duma's v. Soto

United States District Court, C.D. California, Western Division

November 24, 2014

LINELL LEONARD DUMA'S, JR., Petitioner,
v.
J. SOTO, Warden, Respondent

Linell Leonard Duma s, Jr, Plaintiff, Pro se, Lancaster, CA.

MEMORANDUM AND ORDER DISMISSING PETITION

Percy Anderson, United States District Judge.

In 1990, petitioner was convicted of one count of first degree murder, one count of rape, and one count of first degree burglary. He was sentenced to state prison for a term of life without the possibility of parole plus 12 years. [Petition at 2]. Petitioner's conviction was affirmed on appeal. [Petition at 2-3].

Petitioner previously filed three petitions for a writ of habeas corpus in this Court challenging his 1990 conviction. Case No. CV 95-5609-IH(JR). The petition was denied on the merits on June 7, 1996, and the Court of Appeals affirmed the judgment. The two subsequent petitions were both dismissed as successive. Case No. CV 98-8015-RSWL(AJW) & Case No. CV 14-5939-PA(AJW). The present petition, which was filed on November 13, 2014, also challenges petitioner's 1990 conviction. [Petition at 2].

A federal court must dismiss a successive petition raising the same grounds for relief as a prior petition. 28 U.S.C. § 2244(b)(1). A federal court must also dismiss a successive petition raising a new ground for relief unless the petitioner can show that (1) the claim rests on a new, retroactive, constitutional right or (2) the factual basis of the claim was not previously discoverable through due diligence, and those new facts establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). It is not the district court, however, that decides whether a successive petition may proceed. Rather, " [b]efore 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). Absent authorization from the Court of Appeals, this Court lacks jurisdiction over this successive petition. Burton v. Stewart, 549 U.S. 147, 152-153, 157, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001), cert. denied, 538 U.S. 984, 123 S.Ct. 1793, 155 L.Ed.2d 677 (2003).

Because petitioner has not obtained leave from the Court of Appeals to file a successive petition, [1] this Court lacks jurisdiction to consider it. Accordingly, the petition for a writ of habeas corpus is dismissed for lack of jurisdiction.

It is so ordered.

JUDGMENT

It is hereby adjudged that the petition for a writ of habeas corpus is dismissed for lack of jurisdiction.


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