United States District Court, C.D. California
December 9, 2014
MAURICE R. POLK, Petitioner,
TIM V. VIRGA, WARDEN, Respondent
Maurice R Polk, Petitioner, Pro se, Represa, CA.
[PROPOSED] ORDER DISMISSING SECOND OR SUCCESSIVE HABEAS CORPUS PETITION AND DENYING CERTIFICATE OF APPEALABILITY
JAMES V. SELNA, UNITED STATES DISTRICT JUDGE. PATRICK J. WALSH, UNITED STATES MAGISTRATE JUDGE.
Before the Court is a second attempt by Petitioner to challenge his 1997 robbery conviction and resultant sentence. His first petition was denied as time-barred in 2012. See Polk v. Virga, CV 12-7831-JVS (PJW), December 5, 2012 Order Accepting Report and Recommendation of United States Magistrate Judge. That denial created " a 'permanent and incurable' bar to federal review of the underlying claims." McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). Absent an order from the Ninth Circuit, Petitioner may not bring a habeas petition challenging that sentence in this court. See 28 U.S.C. § 2244; see also Burton v. Stewart, 549 U.S. 147, 157, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (holding district court lacks jurisdiction to consider the merits of a second or successive petition absent prior authorization from the circuit court). For this reason, the Petition is dismissed.
In addition, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right or that the Court erred in its procedural ruling and, therefore, a certificate of appealability will not issue in this action. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
IT IS SO ORDERED.
Pursuant to the Order Dismissing Second or Successive Habeas Corpus Petition, IT IS ADJUDGED that the Petition is denied and this action is dismissed.