Opinion
Case No. LA CV 15-6085 CBM (JCG)
08-19-2015
ORLANDO FIERROS, Petitioner, v. JEFFREY BEARD, Respondent.
ORDER SUMMARILY DISMISSING ACTION WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY
On August 11, 2015, petitioner Orlando Fierros ("Petitioner"), a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition"). [Dkt. No. 1.] Notably, it is his second federal petition challenging a 1996 state court conviction for, e.g, rape, robbery, and false imprisonment. (Pet. at 2.) Petitioner has consented to the Magistrate Judge's jurisdiction and is the only party who has appeared in this action. [See Dkt. No. 2.] Accordingly, and for the reasons discussed below, the Court finds that the Petition is an unauthorized "second or successive" petition, and summarily dismisses this action without prejudice for lack of jurisdiction. See 28 U.S.C. 2244(b); Wilhelm v. Rotman, 680 F.3d 1113, 1119-21 (9th Cir. 2012) (holding that magistrate judge had jurisdiction to dismiss action where prisoner consented and was only party to action); Holloway v. Price, 2013 WL 6145150 (C.D. Cal. Nov. 21, 2013) (magistrate judge's summary dismissal of successive habeas petition).
By way of background, Petitioner first challenged his conviction in 1999. (See C.D. Cal. Case No. 99-2535 CBM (JWJ), Dkt. No. 1.) That petition was denied. (See id., Dkt. Nos. 36, 38, 39.) Petitioner's subsequent requests for a Certificate of Appealability were denied by both this Court and the Ninth Circuit Court of Appeals. (See id., Dkt. Nos. 43, 65.)
Now, Petitioner has filed the instant Petition, in which he again challenges his 1996 conviction. (Pet. at 1.)
However, Petitioner has failed to obtain the Ninth Circuit's authorization to file a "second or successive" petition. See 28 U.S.C. § 2244(b).
For the foregoing reasons, IT IS ORDERED THAT this action be SUMMARILY DISMISSED WITHOUT PREJUDICE for lack of jurisdiction, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
Additionally, for the reasons stated above, the Court finds that Petitioner has not shown that reasonable jurists would find it debatable whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). The Court thus DECLINES to issue a certificate of appealability.
LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: August 19, 2015
/s/_________
HON. JAY C. GANDHI
UNITED STATES MAGISTRATE JUDGE