United States District Court, C.D. California, Western Division
ORDER DISMISSING HABEAS PETITION AS SUCCESSIVE AND FOR FAILURE TO PROSECUTE AND FOLLOW COURT ORDERS
MANUEL L. REAL, District Judge.
On January 20, 2015, petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 ("Petition" or "Pet.") in the United States District Court for the Central District of California. In the Petition, petitioner challenges his December 23, 2008, conviction in the Los Angeles County Superior Court, case number YA072757, for second degree robbery, making criminal threats, and felony assault with great bodily injury. (Pet. at 2).
On June 8, 2011, petitioner previously filed a habeas petition in this Court, in Case No. CV 11-5386-R (PLA), also challenging his 2008 conviction in Los Angeles County Superior Court Case number YA072757 ("2011 Petition"). The 2011 Petition was dismissed on the merits with prejudice pursuant to the Judgment entered on June 4, 2013.
On January 26, 2015, the Magistrate Judge issued an order requiring petitioner to show cause, on or before February 16, 2015, why the Petition should not be dismissed as successive. (Dkt. No. 3). Petitioner was advised that his failure to timely file a response to the Order to Show Cause, or failure to show that he has obtained authorization to file a successive petition, "will result in the instant Petition being summarily dismissed without prejudice." (Dkt. No. 3 at 3-4).
To date, petitioner has not filed a response to the January 26, 2015, Order to Show Cause, and his time to do so has passed.
A. SUCCESSIVE PETITION
A federal habeas petition is successive if it raises claims that were or could have been adjudicated on the merits in a previous petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001) (per curiam) (citation omitted). The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") provides that a claim presented in a second or successive federal habeas petition that was not presented in a prior petition shall be dismissed unless:
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would ...