United States District Court, C.D. California
ORDER: DISMISSING PETITION FOR WRIT OF HABEAS CORPUS
WITHOUT PREJUDICE; AND DENYING CERTIFICATE OF
APPEALABILITY
CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE
On July
24, 2016, Jorge Estrada Martinez (“Petitioner”),
a California state prisoner proceeding pro se, filed
a Petition for Writ of Habeas Corpus by a Person in State
Custody (the “Petition”) under 28 U.S.C. §
2254.[1] (Dkt. No. 1.)
Petitioner
challenges a 2008 state court conviction - and accompanying
sentence of life without parole - for first degree murder,
robbery and firearms enhancement under California Penal Code
(“Penal Code”) §§ 187, 211, 664,
190.2(a)(17), 12022.53(a)(1), 12022.53(b)(c). (Petition at
2.) However, as Petitioner acknowledges, this Court denied a
prior habeas petition challenging the same conviction in
2011. (See Petition at 7); see also Martinez v.
Clark, No. CV 10-2694-CAS (RZ), 2011 U.S. Dist. LEXIS
31965 (C.D. Cal., Mar. 25, 2011) (accepting Report and
Recommendation of Magistrate Judge at 2011 U.S. Dist. LEXIS
31956 (C.D. Cal. Feb. 18, 2011) (“2011 Report and
Recommendation”)).
Rule 4
of the Rules Governing Section 2254 Cases in the United
States District Courts, 28 U.S.C. foll. § 2254
(“Habeas Rules”), requires a district court to
dismiss a petition without ordering a responsive pleading
where “it plainly appears from the petition and any
attached exhibits that the petitioner is not entitled to
relief.” Habeas Rule 4. For the reasons set forth
below, the Petition must be, and is, DISMISSED as second or
successive, pursuant to 28 U.S.C. § 2244(b) and Rule 4.
BACKGROUND
Petitioner
appealed his 2008 conviction in the California Court of
Appeal, which modified his sentence, but otherwise affirmed
his conviction in an unpublished decision dated June 23,
2009. (2011 Report and Recommendation at 2.) The California
Supreme Court denied review on September 9, 2009.
Id. On April 14, 2010, Petitioner filed a Petition
For Writ Of Habeas Corpus (“2010 Petition”)
pursuant to 28 U.S.C. § 2254 in the United States
District Court for the Central District of California.
Id. On March 25, 2011, United States District
Christina A. Snyder dismissed the 2010 Petition with
prejudice on the grounds that the petition failed to present
a cognizable claim for relief and denied a Certificate of
Appealability. (See No. CV 10-2694-CAS (RZ), Dkt.
Nos. 20, 21.)
The
instant Petition, like Petitioner’s 2010 Petition,
concerns Petitioner’s 2008 conviction. For the
following reasons, the Court lacks jurisdiction to consider
the Petition.
DISCUSSION
State
habeas petitioners generally may file only one federal habeas
petition challenging a particular state conviction and/or
sentence. See, e.g., 28 U.S.C. § 2244(b)(1)
(courts must dismiss a claim presented in a second or
successive petition when that claim was presented in a prior
petition) and § 2244(b)(2) (with several exceptions not
applicable here, courts must dismiss a claim presented in a
second or successive petition when that claim was not
presented in a prior petition). “A habeas petition is
second or successive . . . if it raises claims that were or
could have been adjudicated on the merits” in an
earlier Section 2254 petition. McNabb v. Yates, 576
F.3d 1028, 1029 (9th Cir. 2009); see also Gage v.
Chappell, 793 F.3d 1159, 1165 (9th Cir. 2015) (claims
for which the factual predicate existed at the time of the
first habeas petition qualify as second or successive)
(citations omitted).
Even
when Section 2244(b) provides a basis for pursuing a second
or successive Section 2254 habeas petition, state habeas
petitioners seeking relief in this district court must first
obtain authorization from the Ninth Circuit before filing any
such second or successive petition. 28 U.S.C. §
2244(b)(3). The Ninth Circuit “may authorize the filing
of the second or successive [petition] only if it presents a
claim not previously raised that satisfies one of the two
grounds articulated in § 2242(b)(2).” Burton
v. Stewart, 549 U.S. 147, 153 (2007).
In his
2010 Petition, Petitioner sought Section 2254 relief based on
the same state conviction that is at issue here. This Court
dismissed the 2010 Petition with prejudice for failing to
state a cognizable claim. Accordingly, the current Petition
is second or successive within the meaning of Section
2244(b). However, Petitioner has not obtained permission from
the Ninth Circuit to bring a second or successive Section
2254 petition raising the claims alleged in the instant
Petition. Therefore, this Court lacks jurisdiction to
consider the Petition. 28 U.S.C. § 2244(b); see also
Burton, 549 U.S. at 157 (district court lacks
jurisdiction to consider the merits of a second or successive
petition absent prior authorization from the circuit court).
Consequently,
IT IS ORDERED that: the Petition is DISMISSED; and Judgment
shall be entered dismissing this action without prejudice. If
Petitioner receives leave from the Ninth Circuit to raise his
claims in a second or successive Section 2254 petition in
this Court, he may file a habeas petition at that time.
In
addition, pursuant to Rule 11(a) of the Rules Governing
Section 2254 Cases in the United States District Courts, the
Court has considered whether a certificate of appealability
is warranted in this case. See 28 U.S.C. §
2253(c)(2); Slack v. McDaniel, 529 U.S.
473, 484-85 (2000).[2] The Court concludes that a ...