United States District Court, C.D. California, Eastern Division
DOUGLAS F. MCCORMICK UNITED STATES MAGISTRATE JUDGE
ORDER SUMMARILY DISMISSING PETITION WITHOUT PREJUDICE
FOR LACK OF JURISDICTION
F. WALTER UNITED STATES DISTRICT JUDGE
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.See id at 2.
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).
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
(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.
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