United States District Court, C.D. California
PRESENTED BY FREDERICK F. MUMM UNITED STATES MAGISTRATE JUDGE
ORDER SUMMARILY DISMISSING PETITION 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 APPEALABILITY
V. SELNA UNITED STATES DISTRICT JUDGE
OF HABEAS PETITION WITHOUT PREJUDICE
about May 3, 2016, Petitioner Darrell Wayne Howard
("Petitioner") filed a Petition for Writ of Habeas
Corpus by a Person in State Custody ("Petition"),
pursuant to 28 U.S.C. § 2254. (Dkt. No. 1.) The Petition
challenges a 1988 conviction for second-degree felony-murder.
(Id. at 2.)
Court takes judicial notice of its files with respect to a
prior habeas petition (the "Prior
Petition") Petitioner filed in this Court on or about
April 20, 2010 (Case No. CV 10-579-AHM-FFM). The Court notes
that the Prior Petition attacked the same conviction and
sentence as the present Petition. On June 20, 2011, the Prior
Petition was dismissed with prejudice as time-barred.
pending Petition is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996 (Pub.
L. No. 104-132, 110 Stat. 1214) ("AEDPA") which
became effective April 24, 1996. Section 106 of the AEDPA
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.
Prior Petition was denied on the ground that it was barred by
the one-year period of limitation. A "dismissal of a
section 2254 habeas petition for failure to comply with the
statute of limitations renders subsequent petitions second or
successive for purposes of the AEDPA." McNabb v.
Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). Therefore,
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 ...