United States District Court, C.D. California
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS FOR LACK OF SUBJECT MATTER
JURISDICTION
OTIS
D. WRIGHT, II UNITED STATES DISTRICT JUDGE
Petitioner
is a prisoner currently incarcerated at a state prison
facility in Susanville, California. On August 1, 2016, he
filed a Petition for Writ of Habeas Corpus by a Person in
State Custody (28 U.S.C. § 2254) in this Court.
The
current Petition is directed to the same 2012 Los Angeles
County Superior Court judgment of conviction as was a prior
habeas petition filed by petitioner in this Court, in Case
No. CV 13-09471 ODW (VBK). On August 4, 2014, Judgment was
entered in that case, denying the habeas petition and
dismissing the action with prejudice.
The
provisions of the Antiterrorism and Effective Death Penalty
Act of 1996 (Pub. L. 104-132, 110 Stat. 1214)
(“AEDPA”) governing successive petitions apply to
all habeas petitions filed after the effective date of the
AEDPA on April 24, 1996, without regard to when the
conviction was sustained or when the first petition was
filed. See Cooper v. Calderon, 274 F.3d 1270, 1272
(9th Cir. 2001); United States v. Villa-Gomez, 208
F.3d 1160, 1163-64 (9th Cir. 2000). Section 106 of the AEDPA,
amended as 28 U.S.C. § 2244(b), reads in pertinent part
as follows:
(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; 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 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.
The
Petition now pending constitutes a successive petition
challenging the same judgment of conviction as did the habeas
petition in Case No. CV 13-09471, which was denied and
dismissed with prejudice. See, e.g., McNabb v.
Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding that
dismissal of a habeas petition as time barred under 28 U.S.C.
§ 2244(d)(1) constitutes a disposition on the merits and
renders a subsequent petition second or successive for
purposes of 28 U.S.C. § 2244(b)). Thus, to the extent
that petitioner now is purporting to again challenge his 2012
state conviction, it was incumbent on him under §
2244(b)(3)(A) to secure an order from the Ninth Circuit
authorizing the District Court to consider that claim, prior
to his filing of the instant Petition in the District Court.
Petitioner has not secured authorization from the Ninth
Circuit to file a successive petition. His failure to do so
deprives the Court of subject matter jurisdiction. See
Cooper, 274 F.3d at 1274.[1]
IT
THEREFORE IS ORDERED that this action be summarily dismissed
without prejudice, pursuant to Rule 4 of the Rules Governing
Section 2254 Cases in the United States District Courts.
LET
JUDGMENT BE ...