United States District Court, C.D. California
ORDER DISMISSING HABEAS ACTION
JOSEPHINE L. STATON UNITED STATES DISTRICT JUDGE
Court summarily dismisses this action pursuant to 28 U.S.C.
§ 2243 as successive, untimely, and procedurally barred
on its face.
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is a state habeas action. In 2005, Petitioner was convicted
of rape and numerous other sexual offenses and sentenced to
83 years to life in prison. This action represents
Petitioner's seventh federal habeas action in
this Court. Although not clearly pled, the current
habeas petition claims that Petitioner is actually innocent
of the sexual assaults. He also appears to complain about
aspects of the identification testimony against him at trial.
Notably, Petitioner identifies no newly discovered evidence
regarding his convictions as the basis for his actual
the course of Petitioner's previous habeas actions (CV
12-8210, 15-1354, 15-4300), Magistrate Judge Wilner expressly
informed Petitioner that he needed permission from the United
States Court of Appeals for the Ninth Circuit before pursuing
a successive habeas case. As with those actions, the current
petition was not accompanied by a certificate from the Court
of Appeals authorizing a successive habeas action.
Additionally, when Petitioner presented his new
“claims” in habeas actions in the state supreme
court, that court denied review by citation to In re
Robbins, 18 Cal.4th 770, 780 (1998), and In re
Clark, 5 Cal.4th 750, 767-769 (1993). (Docket # 1 at
32.) These citations signaled that Petitioner's habeas
filing was untimely as a matter of California law. Walker
v. Martin, __ U.S.__, 131 S.Ct. 1120, 1125 (2011).
* * *
it “appears from the application that the applicant or
person detained is not entitled” to habeas relief, a
court may dismiss a habeas action without ordering service on
the responding party. 28 U.S.C. § 2243; see
also Rule 4 of Rules Governing Section 2254 Cases in
United States District Courts (petition may be summarily
dismissed if petitioner plainly not entitled to relief);
Local Civil Rule 72-3.2 (magistrate judge may submit proposed
order for summary dismissal to district judge “if it
plainly appears from the face of the petition [ ] that the
petitioner is not entitled to relief”).
Petitioner's seventh habeas action is subject to summary
dismissal. The action is an unauthorized successive petition
for which - despite the Court's previous warnings -
Petitioner did not apply to the circuit court for permission
to pursue. A prisoner must obtain authorization from the
Court of Appeals to pursue such a successive habeas petition
before the new petition may be filed in district
court. 28 U.S.C. § 2244(b)(3); Burton v.
Stewart, 549 U.S. 147 (2007) (dismissing successive
petition for failure to obtain authorization from court of
Additionally, Petitioner's action is facially time-barred
under AEDPA and procedurally-barred from federal review. A
habeas litigant is obliged to commence an action within one
year of the conviction becoming final. 28 U.S.C. § 2244.
Petitioner filed his current action over a decade after his
conviction became final. His vague claims of actual innocence
are insufficient to render his action timely.
Moreover, the state supreme court's determination that
his state habeas action was untimely (the
Clark/Robbins order) means his action is
procedurally barred in federal court. In Walker, the
Supreme Court unanimously and expressly held that
California's untimeliness bar for habeas petitions is an
adequate and independent state procedural ground that bars
relief in federal court. Walker, 131 S.Ct. at 1124.
Therefore, when a California court bases a denial of a habeas
petition on Clark or Robbins, a prisoner is
defaulted under AEDPA from pursuing consideration of those
claims on federal habeas review. Id.; see
also Alvarez v. Wong, 425 F. App'x 652 (9th Cir.
2011) (applying Walker to affirm dismissal of
petition that was untimely in state court).
current action is successive, untimely, and is procedurally
barred. The petition is subject to summary dismissal. Because
the Court does not have jurisdiction to consider
Petitioner's claims, the action is DISMISSED without