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Richardson v. Montgomery

United States District Court, C.D. California, Eastern Division

July 1, 2019

DONN RICHARDSON, Petitioner,
v.
W.L. MONTGOMERY, Warden Respondent.

          DOUGLAS F. MCCORMICK UNITED STATES MAGISTRATE JUDGE

          ORDER SUMMARILY DISMISSING PETITION WITHOUT PREJUDICE FOR LACK OF JURISDICTION

          JOHN F. WALTER UNITED STATES DISTRICT JUDGE

         I. BACKGROUND

         On May 21, 2019, Petitioner filed in this Court a Petition for Writ of Habeas Corpus by a Person in State Custody under 28 U.S.C. § 2254. See Dkt. 1 (“Petition”). The Petition seeks relief from Petitioner's 2010 conviction and sentence in Los Angeles County Superior Court for one count of shooting at an inhabited dwelling and two counts of assault with a firearm.[1]See id at 2.

         This is Petitioner's second habeas corpus petition in this Court; a previous petition for habeas relief from the same 2010 conviction and sentence was dismissed for untimeliness. See Amended Report & Recommendation, Richardson v. Montgomery, No. 16-02255 (CD. Cal. Nov. 9, 2017), Dkt. 36; Order Adopting Amended Report & Recommendation, id (Mar. 23, 2018), Dkt. 42. Petitioner appealed that decision to the Ninth Circuit, which denied a certificate of appealability. See Order, Richardson v. Montgomery, No. 18-55493 (9th Cir. Mar. 15, 2019), Dkt. 7. Accordingly, this Petition is successive. See McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2016) (holding that dismissal of habeas petition for failure to comply with statute of limitations renders subsequent petitions second or successive).

         II. discussion

         This Court may not entertain a second or successive habeas petition unless Petitioner obtains leave from the Ninth Circuit Court of Appeals. 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 district court to consider the application.

28 U.S.C. § 2244 (b)(1)-(3); see also Rule 9 of the Rules Governing § 2254 Cases in the United States District Courts. In addition, Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts provides that if it plainly appears from the face of the petition and any exhibits thereto that the petition is not entitled ...


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