United States District Court, C.D. California
February 27, 2015
JOSE GELITO RODRIGUEZ, Petitioner,
STU SHERMAN, Warden, Respondent.
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND ACTION WITHOUT PREJUDICE
JACQUELINE CHOOLJIAN, Magistrate Judge.
On February 24, 2015, petitioner Jose Gelito Rodriguez ("petitioner"), a California prisoner who is proceeding pro se, formally filed a Petition for Writ of Habeas Corpus ("Current Federal Petition") with exhibits ("Petition Exhibits" or "Petition Ex.") and an Election Regarding Consent to Proceed Before a United States Magistrate Judge which reflects that he voluntarily consents to have a United States Magistrate Judge conduct all further proceedings in this case, decide all dispositive and non-dispositive matters, and order the entry of final judgment.
The Current Federal Petition challenges petitioner's 1984 conviction following a guilty plea in Los Angeles County Superior Court Case No. A384310 ("State Case" or "State Conviction").
Based on the record (including facts as to which this Court takes judicial notice as detailed below) and the applicable law, the Current Federal Petition and this action are dismissed without prejudice for lack of jurisdiction because petitioner did not obtain the requisite authorization from the Court of Appeals to file a successive petition. Further, the Clerk of the Court is directed to refer the Current Federal Petition to the United States Court of Appeals for the Ninth Circuit (the "Ninth Circuit") pursuant to Ninth Circuit Rule 22-3(a).
II. PROCEDURAL HISTORY
A. State Conviction, Direct Appeal, and State Habeas Petitions
On June 15, 1984, petitioner pleaded guilty to second degree murder in Los Angeles County Superior Court. Petitioner thereafter sought to withdraw his guilty plea. On July 20, 1984, the trial court denied petitioner's motion to withdraw his guilty plea, and sentenced petitioner to fifteen years to life in prison. Petitioner attempted to file a notice of appeal on August 20, 1984, but was notified that the appeal would not be perfected absent a certificate of probable cause. Such a certificate was never granted.
On September 10, 1993, petitioner filed a habeas petition in the California Supreme Court which was denied on October 27, 1993.
On or about April 11, 1997, petitioner filed a habeas petition in the Los Angeles County Superior Court which was denied on April 30, 1997.
On or about August 29, 2005, petitioner filed another habeas petition in Los Angeles County Superior Court which was denied on September 27, 2005.
On October 17, 2005, petitioner filed a habeas petition in the California Court of Appeal which was denied on October 26, 2005.
On November 30, 2005, petitioner filed a habeas petition in the California Supreme Court which was denied on August 30, 2006.
On May 13, 2007, petitioner filed another habeas petition in the California Court of Appeal which was denied on March 21, 2007.
On March 9, 2012, petitioner filed another habeas petition in the California Court of Appeal which was denied on March 23, 2012.
On May 9, 2012, petitioner filed another habeas petition in the California Supreme Court which was denied on August 8, 2012.
Petitioner thereafter filed another habeas petition in Los Angeles County Superior Court which was denied on June 13, 2013.
On July 26, 2013, petitioner filed another habeas petition in the California Court of Appeal which was denied on August 29, 2013.
On December 9, 2013, petitioner filed a habeas petition in the California Supreme Court which was denied on February 19, 2014.
B. First Federal Petition/First Federal Action, Ninth Circuit Action and U.S. Supreme Court Action
On November 7, 2005, petitioner filed the First Federal Petition in which he challenged his conviction in the State Case on multiple grounds. On October 23, 2007, judgment was entered denying the First Federal Petition with prejudice and dismissing the First Federal Action with prejudice based on the Court's determination that the First Federal Petition was untimely. On July 28, 2008, the Ninth Circuit denied petitioner's request for a certificate of appealability. On February 23, 2009, the U.S. Supreme Court denied petitioner's petition for a writ of certiorari.
C. Current Federal Petition
As noted above, on February 24, 2015, petitioner formally filed the Current Federal Petition which again challenges the judgment in the State Case. The record does not reflect that petitioner has obtained authorization from the Ninth Circuit to file the Current Federal Petition in District Court.
Before a habeas petitioner may file a second or successive petition in a district court, he must apply to the appropriate court of appeals for an order authorizing the district court to consider the application. Burton v. Stewart, 549 U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This provision "creates a gatekeeping' mechanism for the consideration of second or successive applications in district court." Felker v. Turpin, 518 U.S. 651, 657 (1996); see also Reyes v. Vaughn, 276 F.Supp.2d 1027, 1028-30 (C.D. Cal. 2003) (discussing applicable procedures in Ninth Circuit). A district court lacks jurisdiction to consider the merits of a second or successive habeas petition in the absence of proper authorization from a court of appeals. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998)), cert. denied, 538 U.S. 984 (2003).
The court of appeals may authorize the filing of a second or successive petition only if it determines that the petition makes a prima facie showing that at least one claim within the petition satisfies the requirements of 28 U.S.C. Section 2244(b), i.e., that a claim which was not presented in a prior application (1) relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court; or (2) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence and the facts underlying the claim would be sufficient to establish that, but for constitutional errors, no reasonable factfinder would have found the applicant guilty of the underlying offense. Nevius v. McDaniel, 104 F.3d 1120, 1120-21 (9th Cir. 1997); Nevius v. McDaniel, 218 F.3d 940, 945 (9th Cir. 2000).
A second or subsequent habeas petition is not considered "successive" if the initial habeas petition was dismissed for a technical or procedural reason, rather than on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-487 (2000) (second habeas petition not "successive" if initial habeas petition dismissed for failure to exhaust state remedies); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-645 (1998) (second habeas petition not "successive" if claim raised in first habeas petition dismissed as premature); but see McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (dismissal on statute of limitations grounds constitutes disposition on the merits rendering subsequent petition "second or successive"); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir.) (dismissal on procedural default grounds constitutes disposition on the merits rendering subsequent petition "second or successive"), cert. denied, 546 U.S. 884 (2005); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995) (dismissal for failure to prosecute treated as judgment on the merits) (citations omitted); Reyes v. United States, 1999 WL 1021815 *3 (E.D.N.Y. 1999) (dismissal of first habeas petition for failure to prosecute pursuant to Fed.R.Civ.P. 41(b) constitutes dismissal on the merits and renders subsequently filed habeas petition second or successive).
Petitioner's First Federal Petition was denied as untimely - a determination which the Ninth Circuit has deemed to constitute a disposition on the merits. See McNabb, 576 F.3d at 1030. Accordingly, the Current Federal Petition is successive. Since petitioner filed the Current Federal Petition without authorization from the Ninth Circuit, this Court lacks jurisdiction to consider it.
IT IS THEREFORE ORDERED that the Current Federal Petition and this action are dismissed without prejudice.