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Brown v. Varga

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

January 21, 2015

VERNON CASTLE BROWN, JR., Petitioner,
v.
TIM V. VARGA, Respondent.

MEMORANDUM AND ORDER DISMISSING PETITION

CHRISTINA A. SNYDER, District Judge.

Petitioner filed this petition for a writ of habeas corpus on January 13, 2015. The petition challenges petitioner's 2001 murder conviction in the Los Angeles County Superior Court. [Petition at 2]. Petitioner previously filed a petition in this Court challenging the same conviction. Case No. CV 03-7528-FMC(AJW). That petition was denied on the merits on June 8, 2004. Petitioner subsequently filed numerous petitions challenging his 2001 conviction, all of which were dismissed as successive.[1]

A federal court must dismiss a successive petition raising the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). A federal court must also dismiss a successive petition raising a new ground 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 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001), cert. denied, 538 U.S. 984 (2003).

Because petitioner has not obtained leave from the Court of Appeals to file a successive petition, the petition for a writ of habeas corpus is dismissed for lack of jurisdiction.

It is so ordered.


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