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Smith v. Borders

United States District Court, C.D. California

November 20, 2017

CLIFFORD PAUL SMITH, Petitioner,
v.
DEAN BORDERS, Warden, Respondent.

          ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND ACTION WITHOUT PREJUDICE

          HONORABLE JOSEPHINE L. STATON, UNITED STATES DISTRICT JUDGE.

         I. SUMMARY

         On October 20, 2017, petitioner Clifford Paul Smith, a California prisoner who is proceeding pro se, formally filed a Petition for Writ of Habeas Corpus (“Current Federal Petition”) with multiple attached exhibits. Petitioner challenges his conviction in Riverside County Superior Court Case No. SWF025150 (“State Case”).

         Based on the record (including facts as to which this Court takes judicial notice as detailed below) and the applicable law, the Current Federal Petition and this action are dismissed without prejudice for lack of jurisdiction because petitioner did not obtain the requisite authorization from the Court of Appeals to file a successive petition. Further, the Clerk of the Court is directed to refer the Current Federal Petition to the United States Court of Appeals for the Ninth Circuit (“Ninth Circuit”) pursuant to Ninth Circuit Rule 22-3(a).[1]

         II. PROCEDURAL HISTORY[2]

         A. Pertinent State Proceedings Relating to the State Case

         On July 30, 2008, a Riverside County Superior Court jury found petitioner guilty of murder and assault on a child causing death. On January 9, 2009, the trial court sentenced him to a total of 25 years to life in state prison. On June 21, 2010, in Case No. E047485, the California Court of Appeal affirmed the judgment in the State Case. On September 1, 2010, in Case No. S184860, the California Supreme Court denied review. Petitioner thereafter sought and was denied habeas relief in the Riverside County Superior Court, the California Court of Appeal (Case Nos. E067339, E068114), and the California Supreme Court (Case Nos. S194932, S242147).

         B. First Federal Action

         On July 12, 2012, petitioner filed a First Amended Petition for Writ of Habeas Corpus in the First Federal Action (“Operative Prior Federal Petition”) in which petitioner challenged the judgment in the State Case. On May 8, 2015, the assigned United States District Judge accepted the United States Magistrate Judge's Report and Recommendation recommending denial of the Operative Prior Federal Petition on the merits and dismissal with prejudice. On May 11, 2015, judgment was entered denying the Operative Prior Federal Petition and dismissing the First Federal Action with prejudice. On January 19, 2016, the Ninth Circuit denied petitioner a certificate of appealability in the Ninth Circuit Action.

         C. Current Federal Petition

         As noted above, on October 20, 2017, petitioner formally filed the Current Federal Petition which again challenges the judgment in the State Case.

         The record does not reflect that petitioner has obtained authorization from the Ninth Circuit to file the Current Federal Petition in District Court.[3]

         III. DISCUSSION

         Before a habeas petitioner may file a second or successive petition in a district court, he must apply to the appropriate court of appeals for an order authorizing the district court to consider the application. Burton v. Stewart, 549 U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This provision “creates a ‘gatekeeping' mechanism for the consideration of second or successive applications in district court.” Felker v. Turpin, 518 U.S. 651, 657 (1996); see also Reyes v. Vaughn, 276 F.Supp.2d 1027, 1028-30 (C.D. Cal. 2003) (discussing applicable procedures in Ninth Circuit). A district court lacks jurisdiction to consider the merits of a second or successive habeas petition in the absence of proper authorization ...


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