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Smith v. Asuncion

United States District Court, C.D. California

June 27, 2017

TYRON SMITH, Petitioner,
v.
DEBBIE ASUNCION, Warden, Respondent.

          ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION

          JOHN A. KRONSTADT UNITED STATES DISTRICT JUDGE

         PROCEEDINGS

         On May 16, 2017, petitioner filed a Petition for Writ of Habeas Corpus (“Pet.”) pursuant to 28 U.S.C. § 2254 along with supporting exhibits (“Pet. Exh.”). The Petition purports to be directed to a 2007 conviction sustained by petitioner in Los Angeles County Superior Court in Case No. TA084803. (See Pet. at 1, 7.) Petitioner purports to be raising a single ground for relief contending that the mandatory life sentence he received while still a minor violates the Eighth Amendment's proscription against cruel and unusual punishment. (See Pet. at 1-2, 10-11.)

         Based on its review of the Petition, as well as information derived from the docket of the United States District Court, Central District of California, it appeared to the Court that the Petition herein constituted a second or successive petition under 28 U.S.C. § 2244(d), as petitioner previously sought habeas relief from the same 2007 Los Angeles County Superior Court judgment of conviction in a petition filed in this Court, Case No. CV 11-06026-JAK (DTB) (the “Prior Action”). On September 17, 2012, Judgment was entered in the Prior Action dismissing that petition with prejudice. Petitioner filed a notice of appeal from that Judgment on November 7, 2012, and the Ninth Circuit affirmed the Judgment on October 29, 2013.

         Therefore, on May 22, 2017, the Court issued an Order to Show Cause (“OSC”) ordering petitioner to show cause as to why the Court should not recommend that this action be dismissed on the ground that petitioner failed to secure an order from the Ninth Circuit authorizing the District Court to consider the Petition, prior to his filing of it in this Court. On June 12, 2017, petitioner filed his Response to the OSC. In his Response, petitioner acknowledges that the Court is correct as to the nature of the instant Petition and that he has filed an application for permission to file a second or successive petition with the Ninth Circuit. (Response at 1.) Petitioner requests that the Court “wait and see what the Ninth Circuit does with the ‘Application for permission motion'” before ruling on the OSC. (Id.)

         DISCUSSION

         I. The Court lacks jurisdiction to consider the Petition as it is second or successive to his prior petitions.

         The Court has considered petitioner's Response to the OSC and rules as follows: The Petition pending constitutes a second or successive petition under the Antiterrorism and Effective Death Penalty Act of 1996 (the “AEDPA”). Specifically, under the AEDPA, 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 ...

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