Young v. Tampkins

          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 § 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 ...