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Cowart v. Sherman

United States District Court, C.D. California

January 13, 2015

GARDELL COWART, Petitioner,
v.
STU SHERMAN, Respondent.

ORDER SUMMARILY DISMISSING ACTION WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY

DALE S. FISCHER, District Judge.

On January 2, 2015, petitioner Gardell Cowart ("Petitioner"), a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition"). [Dkt. No. 1.] Notably, it is his third federal petition challenging his 2009 state court conviction for assault and battery. What's more, Petitioner filed the Petition even after the Ninth Circuit denied his request for a certificate of appealability. Accordingly, and for the reasons discussed below, the Court finds that the Petition is an unauthorized "second or successive" petition, and summarily dismisses this action without prejudice for lack of jurisdiction. See 28 U.S.C. 2244(b).

By way of background, Petitioner first challenged his conviction in 2010 on the grounds of insufficiency of evidence and ineffectiveness of trial counsel. [ See C.D. Cal. Case No. CV 10-7177 DSF (JCG), Dkt. No. 1.] That petition was denied. [ See id., Dkt. Nos. 29, 31, 32.]

In 2013, Petitioner filed a second petition challenging the same conviction. [ See C.D. Cal. Case No. CV 13-9051 DSF (JCG), Dkt. No. 1.] This Court dismissed that action for lack of jurisdiction, on the grounds that Petitioner had not obtained authorization to file a "second or successive" petition. [ See id., Dkt. No. 5, at 4.] At that time, the Court explained that "it was incumbent on Petitioner under [28 U.S.C.] § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing this Court to consider the instant Petition prior to its filing." [ Id. ]

In June 2014, Petitioner filed an application with the Ninth Circuit requesting permission to file a "second or successive" petition. [ See Ninth Cir. Case No. 14-71796, Dkt. No. 1.] Therein, Petitioner claimed, for the first time, that he was actually innocent of the crimes for which he was convicted. [ See id., Dkt. No. 1 at 4 (citing Schlup v. Delo, 513 U.S. 298 (1995)).] On August 22, 2014, the Ninth Circuit denied Petitioner's application. [ See id., Dkt. No. 4.]

Unfazed by rejection, Petitioner filed the instant Petition, in which he again challenges the same conviction and again asserts his "actual innocence." (Pet. at 5 (citing Schlup, 513 U.S. 298).) Now, however, Petitioner "only" claims to be actually innocent of the jury's finding that he inflicted "great bodily injury" on the victim, i.e., Petitioner limits his challenge to the sentencing enhancement he received under Cal. Penal Code § 12022.7(a). ( See Pet. at 2, 5.)

Even if this Court were to credit Petitioner's distinction - which it does not - there is no dispute that Petitioner has again failed to obtain the Ninth Circuit's authorization to file a "second or successive" petition. See 28 U.S.C. 2244(b). Accordingly, the Court must dismiss this third action for lack of jurisdiction. See id.

Additionally, for the reasons stated above, the Court finds that Petitioner has not shown that reasonable jurists would find it debatable whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). The Court thus declines to issue a certificate of appealability.

For the foregoing reasons, IT IS ORDERED THAT this action be SUMMARILY DISMISSED WITHOUT PREJUDICE for lack of jurisdiction, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

IT IS FURTHER ORDERED THAT a Certificate of Appealability be DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.


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