United States District Court, C.D. California
ORDER OF DISMISSAL
J. HATTER, JR., UNITED STATES DISTRICT JUDGE.
August 12, 2019, Petitioner, a state prisoner, filed in the
United States District Court for the Southern District of
California a “Petition for Writ of Habeas Corpus”
(“the Petition”). On August 21, 2019, this Court
received a transfer of the Petition from the Southern
District. The Petition challenges a 1987 Los Angeles Superior
Court criminal judgment. Petitioner previously challenged
this same Superior Court judgment in a prior habeas corpus
petition filed in this Court. See Simmons v. Hill,
CV 96-2174-TJH(CW). On July 15, 1999, this Court entered
judgment in Simmons v. Hill, CV 96-2174-TJH(CW),
denying and dismissing the prior petition on the merits with
Court must dismiss the present Petition in accordance with 28
U.S.C. section 2244(b) (as amended by the
“Antiterrorism and Effective Death Penalty Act of
1996”). Section 2244(b) requires that a petitioner
seeking to file a “second or successive” habeas
petition first obtain authorization from the Court of
Appeals. See Burton v. Stewart, 549 U.S. 147, 157
(2007) (where petitioner did not receive authorization from
Court of Appeals before filing second or successive petition,
“the District Court was without jurisdiction to
entertain [the petition]”); Barapind v. Reno,
225 F.3d 1100, 1111 (9th Cir. 2000) (“the
prior-appellate-review mechanism set forth in § 2244(b)
requires the permission of the court of appeals before
‘a second or successive habeas application under §
2254' may be commenced”). A petition need not be
repetitive to be “second or successive, ” within
the meaning of 28 U.S.C. section 2244(b). See, e.g.,
Thompson v. Calderon, 151 F.3d 918, 920-21 (9th
Cir.), cert. denied, 524 U.S. 965 (1998);
Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D.
Cal. Mar. 6, 2008). Petitioner evidently has not yet obtained
authorization from the Ninth Circuit Court of
Appeals. Consequently, this Court cannot entertain
the present Petition. See Burton v. Stewart, 549 U.S.
at 157; Remsen v. Att'y Gen. of Calif., 471 Fed.
App'x 571, 571 (9th Cir. 2012) (if a petitioner fails to
obtain authorization from the Court of Appeals to file a
second or successive petition, “the district court
lacks jurisdiction to consider the petition and should
dismiss it.”) (citation omitted).
fact that Petitioner appears to have styled the present
Petition as a petition under section 2241 (as well as, or in
lieu of, a petition under section 2254) cannot change the
result herein. Section 2254 “is the exclusive avenue
for a state court prisoner to challenge the constitutionality
of his detention.” White v. Lambert, 370 F.3d
1002, 1007 (9th Cir.), cert. denied, 543 U.S. 991
(2004), overruled on other grounds, Hayward v.
Marshall, 603 F.3d 546 (9th Cir. 2010), abrogated on
other grounds, Swarthout v. Cooke, 562 U.S. 216
(2011). Consequently, “a state habeas petitioner may
not avoid the limitations imposed on successive petitions by
styling his petition as one pursuant to 28 U.S.C. § 2241
rather than 28 U.S.C. § 2254.” Moore v.
Reno, 185 F.3d 1054, 1055 (9th Cir. 1999), cert.
denied, 528 U.S. 1178 (2000); accord Greenawalt v.
Stewart, 105 F.3d 1287, 1288 (9th Cir.), cert.
denied, 519 U.S. 1103 (1997); Stanton v. Law,
2008 WL 4679085, at *1-2 (D. Mont. Oct. 22, 2008),
aff'd, 404 Fed. App'x 158 (9th Cir. 2010).
of the foregoing reasons, the Petition is denied and
dismissed without prejudice.
JUDGMENT BE ENTERED ACCORDINGLY.
this 21st day of August, 2019.
CHARLES F. EICK, UNITED STATES MAGISTRATE JUDGE.
 The Court takes judicial notice of the
docket of the United States Court of Appeals for the Ninth
Circuit, available on the PACER database. See Mir v.
Little Company of Mary Hosp., 844 F.2d 646, 649 (9th
Cir. 1988) (court may take judicial notice of court records).
The Ninth Circuit's docket does not show that any
individual named Melvin Simmons has obtained any order from
the Ninth Circuit authorizing the filing of a second or
successive habeas petition in this Court. In fact, the docket
reflects that in 2011, the Ninth Circuit denied Petitioner
authorization to file a second or successive petition.
See Simmons v. Felker, No. 11-70171.
 This Court rebuffed a previous attempt
by Petitioner to bring a second or successive petition
challenging the 1987 Superior Court judgment. See Simmons
v. State ...