United States District Court, C.D. California
Cody W. Klemp, Sr.
J. William Sullivan
PRESENT: HONORABLE SUZANNE H. SEGAL, UNITED STATES MAGISTRATE
CIVIL MINUTES - GENERAL
April 9, 2018,  Cody W. Klemp, Sr., a California state
prisoner proceeding pro se, filed a Petition for
Writ of Habeas Corpus by a Person in State Custody
(“Petition”) pursuant to 28 U.S.C. § 2254,
challenging his 1994 sentence. (Dkt. No. 1). The Petition
appears to be successive and untimely.
Antiterrorism and Effective Death Penalty Act
(“AEDPA”) applies to the instant Petition because
Petitioner filed it after AEDPA's effective date of April
24, 1996. Lindh v. Murphy, 521 U.S. 320, 336 (1997).
AEDPA prohibits a second or successive petition absent
permission by the appropriate court of appeals. 28 U.S.C.
§ 2244(b)(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.”); see also Burton v.
Stewart, 549 U.S. 147, 152 (2007) (per curiam) (AEDPA
states that “before filing [a second or successive
habeas] application in the district court, a prisoner
‘shall move in the appropriate court of appeals for an
order authorizing the district court to consider the
application'”) (quoting 28 U.S.C. §
2244(b)(3)(A)); Tyler v. Cain, 533 U.S. 656, 661
(2001) (“AEDPA greatly restricts the power of federal
courts to award relief to state prisoners who file second or
successive habeas corpus applications.”). Thus,
“[i]f [a] prisoner asserts a claim that he has already
presented in a previous federal habeas petition, the claim
must be dismissed in all cases. And if the prisoner asserts a
claim that was not presented in a previous petition,
the claim must be dismissed unless it falls within one of two
narrow exceptions.” Tyler, 533 U.S. at 661
(emphasis in original) (citation omitted).
instant Petition challenges the same 1994 criminal judgment
that Petitioner previously challenged in multiple petitions
for writ of habeas corpus in the United States District Court
for the Central District of California. For example,
Petitioner filed a petition on October 8, 1997, which the
District Court denied for untimeliness on May 15, 2001.
See Klemp v. Prunty, EDCV 97-0335-RT (Mc) (Dkt. Nos.
1, 41, 44, 45). Petitioner appealed to the Ninth Circuit,
which affirmed the judgment on May 22, 2003. See Klemp v.
Prunty, 67 Fed.Appx. 397 (9th Cir. 2003). On August 10,
2006, Petitioner challenged his 1994 state conviction by
filing another federal habeas petition in the Central
District of California, which the court denied as successive
on April 3, 2007. See Klemp v. Adams, EDCV
06-0861-JSL (SS) (Dkt. Nos. 1, 18, 20, 21). He filed yet
another habeas petition in the same court on March 24, 2010,
which the court denied for untimeliness on May 18, 2010.
See Klemp v. Gonzalez, EDCV 10-0434-JSL (SS) (Dkt.
Nos. 1, 4, 7, 8).
must therefore obtain permission from the Ninth Circuit
before this Court can adjudicate his challenge to his 1994
sentence. 28 U.S.C. § 2244(b)(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.”). Indeed,
even if Petitioner qualifies for an exception to AEDPA's
bar on claims raised in successive petitions, he must still
receive permission from the Ninth Circuit before filing a
petition in this Court. Woods v. Carey, 525 F.3d
886, 888 (9th Cir. 2008) (“Even if a petitioner can
demonstrate that he qualifies for one of these exceptions, he
must seek authorization from the court of appeals before
filing his new petition with the district court.”).
Based on the Court's review of the docket, Petitioner has
not requested or received permission from the Ninth Circuit
to file the Petition. Therefore, the Court lacks jurisdiction
to adjudicate Petitioner's habeas challenge to his 1994
sentence. See Burton, 549 U.S. at 157 (because
“Burton neither sought nor received authorization from
the Court of Appeals before filing his [successive] petition,
. . . the District Court was without jurisdiction to
also imposes a specific time limit on the filing of federal
habeas petitions. See Rhines v. Weber, 544 U.S. 269,
274 (2005). By creating a limitations period, Congress
intended “to reduce delays in the execution of state
and federal criminal sentences.” Woodford v.
Garceau, 538 U.S. 202, 206 (2003). Under 28 U.S.C.
§ 2244(d)(1), as amended, state prisoners have only one
year in which to file their federal habeas petitions. The
one-year limitations period prescribed by 28 U.S.C. §
2244(d)(1) begins to run from the latest of:
(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of the time for
seeking such review;
(B) the date on which the impediment to filing an application
created by State action in violation of the Constitution or
laws of the United States is removed, if the applicant was
prevented from filing by such State action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.
28 U.S.C. § 2244(d)(1)(A)-(D). A petitioner ordinarily
has one year from the date that his conviction becomes final
to file a federal habeas petition. 28 U.S.C. §
2244(d)(1)(A). A case becomes final with “the
conclusion of direct review or ...