United States District Court, C.D. California
ROZELLA A. OLIVER UNITED STATES MAGISTRATE JUDGE
ORDER SUMMARILY DISMISSING PETITION FOR LACK OF
JURISDICTION AND DENYING A CERTIFICATE OF
APPEALABILITY
JOHN
F. WALTER UNITED STATES DISTRICT JUDGE
On July
7, 2016, Petitioner Gregory Leon Young
(“Petitioner”), a California state prisoner,
constructively filed a Petition for Writ of Habeas Corpus by
a Person in State Custody (“Petition”)
challenging a conviction received in August of 1989 (the
“1989 Conviction”). (Pet. at 2, Dkt. No. 1.)
Petitioner has challenged the 1989 Conviction in a habeas
petition filed in this Court on at least one prior
occasion.[1]
Petitioner
challenged the 1989 Conviction in a habeas petition filed on
September 26, 2003. (See Case No.
2:03-cv-06946-JFW-RZ, Dkt. No. 1.) The assigned Magistrate
Judge reviewed that petition, and on October 14, 2003, issued
an order to show cause why it should not be dismissed as
untimely. (Id., Dkt. No. 3.) Petitioner timely filed
a response on October 30, 2003-but on November 12, 2003, the
Magistrate Judge issued a Report and Recommendation
recommending dismissal with prejudice on statute of
limitations grounds. (Id., Dkt. No. 7.) The Court
adopted the Report and Recommendation and entered judgment on
December 10, 2003. (Id., Dkt. Nos. 10-11.)
Petitioner then appealed to the Ninth Circuit, which denied
his request for a certificate of appealability on March 2,
2004. (See id., Dkt. Nos. 18-19.)
Because
Petitioner challenged the 1989 Conviction in a prior habeas
petition in this Court, the Petition must be dismissed as
second or successive.
I.
DISCUSSION
The
Petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), which provides, in
pertinent part, as follows:
(b) (1) A claim presented in a second or successive habeas
corpus application under section 2254 that was presented in a
prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a
prior application 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; [¶]
(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 have
found the applicant guilty of the underlying offense.
(3)(A) Before 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.
See 28 U.S.C. § 2244(b)(1)-(3)(A); see
also Rule 9 of the Rules Governing ยง 2254 Cases in
the United States District Courts (petitioners must obtain an
order from the appropriate court of appeals authorizing the
district court to consider a second or successive ...