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Myers v. Warden

United States District Court, C.D. California

March 28, 2017

MICHAEL CRAIG MYERS, Petitioner,
v.
WARDEN, Respondent.

         ORDER “REFERRING” THE HABEAS PETITION TO THE U.S. COURT OF APPEALS AS REQUIRED BY NINTH CIRCUIT RULE 22-3(A); SUMMARILY DISMISSING ACTION WITHOUT PREJUDICE FOR LACK OF JURISDICTION; DENYING A CERTIFICATE OF APPEALABILITY AND ADVISING PETITIONER THAT HE MAY SEEK A COA FROM THE NINTH CIRCUIT

          VALERIE BAKER FAIRBANK Senior United States District Judge.

         Proceeding pro se, California state prisoner Michael Craig Myers (“Petitioner”) constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254 on about December 18, 2016. See Case Management / Electronic Case Filing System Document (“Doc”) 1. The habeas petition challenges his January 23, 1996 conviction for being a previously convicted felon unlawfully in possession of a firearm in violation of California Penal Code section 667.5(b), apparently on the basis of ineffective assistance of trial counsel and violation of his right to due process. (Id. at 2.)

         After referring the habeas petition to the Court of Appeals pursuant to Ninth Circuit Rule 22-3(a), this Court will then dismiss this action without prejudice. To the extent that a certificate of appealability (''COA'') is required to appeal the dismissal of this action or the referral of the petition, the Court will deny a COA. ''The Court will not enter a final judgment at this time because today's Order does not conclusively dispose of petitioner's habeas claims and does not necessarily foreclose his opportunity to have those claims heard on the merits in federal court.'' Henderson v. Madden, LA CV 16-02003-VBF Doc. 5 (C.D. Cal. May 20, 2016).

         In the instant petition (Doc 1 at 7 para. 10), petitioner answered “no” to the question, “Have you previously filed any habeas petitions in any federal court with respect to this conviction?” That was not accurate. The Court takes judicial notice of a habeas petition[1] that petitioner filed here on August 10, 2001, in case no. LA CV 01-06964-NM-RZ. The Prior Petition attacked the same conviction and sentence as the present Petition. (01-06964 Doc 17 at 2.) On April 25, 2002, the Prior Petition was denied for lack of merit.

         The pending Petition is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which became effective on April 24, 1996. Section 106 of the AEDPA amended 28 U.S.C. § 2244(b) to read, 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.

         Because the Petition now pending challenges the same conviction as the Prior Petition, it is a second-or-successive petition within the meaning of 28 U.S.C. § 2244(b). To the extent that petitioner seeks to pursue the same claims he previously asserted, such claims are barred by 28 U.S.C. § 2244(b)(1). To the extent he seeks to pursue claims not previously asserted, it was incumbent on him under § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing the District Court to consider the petition, prior to his filing it in this Court. Petitioner's failure to secure such an order from the Ninth Circuit deprives the Court of subject-matter jurisdiction.

         “REFERRAL” OF HABEAS CORPUS PETITION TO NINTH CIRCUIT

         Ninth Circuit Rule 22-3(a) states, in pertinent part, that “[i]f a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district ...


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