United States District Court, C.D. California, Western Division
ORDER DISMISSING SUCCESSIVE PETITION WITHOUT
J. CARNEY, UNITED STATES DISTRICT JUDGE
September 25, 2019, petitioner filed a Petition for Writ of
Habeas Corpus by a Person in State Custody pursuant to 28
U.S.C. § 2254 (“Petition”). In the Petition,
petitioner challenges his 2003 conviction for two counts of
first degree residential burglary (Cal. Penal Code
§§ 459, 460(a)) by alleging a due process violation
based on a recent Supreme Court decision. (See ECF
No. 1 at 2, 5, 9-25).
2006, petitioner filed a previous habeas petition in this
Court (the “2006 Petition”). (See Case
No. CV 06-1125-CJC (PLA), ECF No. 1). Petitioner in the 2006
Petition raised the following claims: (1) the evidence was
insufficient to sustain the conviction on both burglary
counts; (2) the trial court violated petitioner's
constitutional rights by admitting preliminary hearing
testimony; and (3) petitioner's conviction was based on
uncorroborated accomplice testimony. (Id., ECF No.
34 at 5). On June 12, 2008, after considering
petitioner's claims on the merits, the Court entered
judgment dismissing the 2006 Petition with prejudice.
(Id., ECF Nos. 34, 39, 40). The Court also granted a
certificate of appealability on petitioner's claim
regarding the admission of preliminary hearing testimony.
(Id., ECF No. 44). On appeal, the Ninth Circuit
affirmed the judgment. (Id., ECF No. 52).
federal habeas petition is successive if it raises claims
that were or could have been adjudicated on the merits in a
previous petition. Cooper v. Calderon, 274 F.3d
1270, 1273 (9th Cir. 2001) (per curiam). The
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) provides that a claim presented in a
second or successive federal habeas petition that was not
presented in a prior petition 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.
28 U.S.C. § 2244(b)(2)(A), (B). Furthermore,
“[b]efore 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)(3)(A).
forth above, petitioner's 2006 Petition, which challenged
his 2003 conviction, was dismissed with prejudice on June 12,
2008. (See Case No. CV 06-1125-CJC (PLA), ECF Nos.
34, 39, 40). In the instant Petition, which again attacks
petitioner's 2003 conviction, petitioner seeks habeas
relief based on the Supreme Court's decision in
Sessions v. Dimaya, __ __U.S. __, 138 S.Ct. 1204,
200 L.Ed.2d 549 (2018), in which the Court held that the
definition of “crime of violence, ” as defined in
18 U.S.C. § 16(b), was impermissibly vague. In
Dimaya, the respondent, a native of the Philippines,
was convicted of first-degree burglary under California law.
During removal proceedings, it was found that the respondent
was deportable because first-degree burglary qualified as a
“crime of violence” under 18 U.S.C. §
16(b). On appeal, the Ninth Circuit held that the
language of § 16(b) was unconstitutionally vague, and
the Dimaya Court affirmed.In the instant Petition, it
appears that petitioner relies on the Dimaya holding
to argue that his first degree burglary conviction in 2003
was wrongly categorized under California sentencing law as a
“violent” felony, and should have been
categorized only as a “serious”
felony. (ECF No. 1 at 10-14).
light of the earlier dismissal of the 2006 Petition, the
Court concludes that the instant Petition is successive. Even
if petitioner could satisfy any of the exceptions listed in
28 U.S.C. § 2244(b)(2)(A) or (B),  he is still
required to request and obtain authorization from
the Ninth Circuit before filing a successive petition. 28
U.S.C. § 2244(b)(3)(A); Burton v. Stewart, 549
U.S. 147, 152-53, 127 S.Ct. 793, 798, 166 L.Ed.2d 628 (2007)
(AEDPA requires petitioner to receive authorization from the
court of appeals before filing a second habeas petition).
Because there is no indication that petitioner has obtained
such authorization from the Ninth Circuit, the Court is
without jurisdiction to entertain the instant Petition.
See Burton, 549 U.S. at 153; Cooper, 274