United States District Court, C.D. California
ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF
HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION;
REFERRING THE PETITION TO THE U.S. COURT OF APPEALS PURSUANT
TO NINTH CIRCUIT RULE 22-3(A); DENYING A CERTIFICATE OF
OF HABEAS PETITION WITHOUT PREJUDICE
about September 4, 2019, petitioner Jerome Norman Scott
(“Petitioner”) constructively filed a Petition
for Writ of Habeas Corpus by a Person in State Custody
(“Petition”). Petitioner challenges a conviction and
sentence imposed by the California Superior Court for the
County of San Bernardino in 2006.
Court takes judicial notice of its files with respect to a
prior habeas petition Petitioner filed in this Court on
August 13, 2009 (Case No. CV 09-1554 GAF (CT)) (the
“Prior Petition”). The Court notes that the Prior
Petition was directed to the same conviction and/or sentence
sustained in San Bernardino County Superior Court in 2006. On
March 6, 2010, Judgment was entered in Case No. CV 09-1554
GAF (CT) denying the Prior Petition on the merits and
dismissing the action with prejudice.
Petition now pending is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (Pub.
L. 104-132, 110 Stat. 1214) (“the Act”) which
became effective April 24, 1996. Section 106 of the Act
amended 28 U.S.C. § 2244(b) to read, in pertinent part,
(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.
because the Petition now pending challenges the same
conviction as Petitioner's Prior Petition, it constitutes
a second and/or successive petition within the meaning of 28
U.S.C. § 2244(b). To the extent Petitioner seeks to
pursue the same claims he previously asserted, the Petition
is barred by the provisions of 28 U.S.C. § 2244(b)(1).
To the extent Petitioner seeks to pursue claims not
previously asserted, it was incumbent on him under §
2244(b)(3)(A) to secure an order from the Ninth Circuit
authorizing the District Court to consider the Petition,
prior to his filing of it in this Court. Petitioner's
failure to secure such an order from the Ninth Circuit
deprives the Court of subject matter jurisdiction.
OF HABEAS CORPUS PETITION TO NINTH CIRCUIT
Circuit Rule 22-3(a) states, in pertinent part, that
“[i]f a second or successive petition or motion, or an
application for authorization to file such a petition or
motion, is mistakenly submitted to the district court, the
district court shall refer it to the court of appeals.”
to the extent the Petition was “mistakenly
submitted” to this Court, the Petition must be referred
to the court of appeals. However, it is unclear whether the
district court may both “refer” the Petition to
the Ninth Circuit and, at the same time, dismiss the
Petition. After reviewing numerous district court cases in
this circuit, this Court concludes that ...