United States District Court, C.D. California
DAVID C. PATKINS, Petitioner,
SHAWN HATTON, Warden, Respondent.
ORDER SUMMARILY DISMISSING PETITION FOR LACK OF
SUBJECT MATTER JURISDICTION REFERRING THE PETITION TO THE
U.S. COURT OF APPEALS PURSUANT TO NINTH CIRCUIT RULE 22-3(A);
DENYING A CERTIFICATE OF APPEALABILITY
M. GEE United States District Judge
OF HABEAS PETITION WITHOUT PREJUDICE
about July 10, 2017, Petitioner David C. Patkins
(“Petitioner”) filed a Petition for Writ of
Habeas Corpus by a Person in State Custody
(“Petition”), pursuant to 28 U.S.C. § 2254.
(Dkt. 1.) The Petition challenges Petitioner's 2002
conviction for murder.
Court takes judicial notice of its files with respect to a
prior habeas petition (the “Prior
Petition”) Petitioner filed in this Court on or about
September 5, 2007, in Case No. CV 07-1124-DMG-FFM. The Court
notes that the Prior Petition attacked the same conviction
and sentence as the present Petition. On September 14, 2011,
the Prior Petition was dismissed on the merits with
pending Petition is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (Pub.
L. No. 104-132, 110 Stat. 1214) (“AEDPA”) which
became effective April 24, 1996. Section 106 of the AEDPA
amended 28 U.S.C. § 2244(b) to read, in pertinent part,
(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
(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
(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.
Prior Petition was denied on the merits. Therefore, because
the Petition now pending challenges the same conviction as
Petitioner's Prior Petition, it constitutes a second
and/or successive petition within the meaning of 28 U.S.C.
§ 2244(b). To the extent Petitioner seeks to pursue the
same claims he previously asserted, the Petition is barred by
the provisions of 28 U.S.C. § 2244(b)(1). To the extent
Petitioner 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 of it in this
Court. Petitioner's failure to secure such an order from
the Ninth Circuit deprives the Court of subject matter
OF HABEAS CORPUS PETITION TO NINTH CIRCUIT
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 ...