NO. CV 21-1423-JAK (AGR)
OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS
Because Petitioner previously challenged the same underlying state criminal conviction in a prior habeas action that the Court dismissed with prejudice, and because Petitioner lacks Ninth Circuit authorization to file a second or successive habeas petition, the Court lacks jurisdiction over the Petition for Writ of Habeas Corpus.
Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records in Petitioner's prior federal habeas corpus action in the Central District of California in Brown v. Duffy, Case No. CV 14-1750-JAK (JCG) (C.D. Cal.) ("Brown I").
On March 10, 2014, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254 in Brown I and challenged his state conviction for attempted murder and assault with a deadly weapon. The Report and Recommendation ("Report") recommended that judgment be entered denying the petition and dismissing the action with prejudice. (Brown I, Dkt. No. 18.) On August 10, 2015, the Court entered an order accepting the Report, entered judgment denying the Petition and dismissing the action with prejudice, and also denied a Certificate of Appealability. (Id., Dkt. Nos. 21-22.)
Petitioner has now filed a second Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254. Perry v. Duffy, Case No. CV 21-1423 JAK (AGR) ("Brown II"). (Dkt. No. 1.) Petitioner again challenges the same state court conviction that he previously challenged in Brown I. The Petition raises a single ground for relief, which corresponds to Ground Four in the petition filed in Brown I. (Compare Brown II, Dkt. No. 1 at 5-7 with Brown i, Dkt. No. 1 at 6, Dkt. No. 1-1 at 8-9.)
Page citations are to the page numbers assigned by CM/ECF in the header of the document.
The Court received and filed the Petition on February 10, 2021. The postmark indicates it was mailed on February 8, 2021. However, Petitioner has dated the Petition on December 2, 2019. (Dkt. No. 1 at 10.) --------
The Petition was filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, the Court applies the AEDPA in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997).
"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." 28 U.S.C. § 2244(b)(3)(A). A district court does not have jurisdiction to consider a "second or successive" petition absent authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152 (2007).
The current Petition is second or successive because Petitioner again challenges the same state court conviction and sentence that he previously challenged in Brown I. A petition is second or successive "if the facts underlying the claim occurred by the time of the initial petition" and "if the petition challenges the same state court judgment as the initial petition." Brown v. Muniz, 889 F.3d 661, 667 (9th Cir. 2018), cert. denied Brown v. Hatton, 139 S. Ct. 841 (2019); see also Magwood v. Patterson, 561 U.S. 320, 332 (2010). Thus, the underlying Petition is second or successive.
The Petition does not state that Petitioner requested or received authorization from the Ninth Circuit to file a second or successive petition. A review of the Ninth Circuit's online database indicates Petitioner did not request or receive authorization to file a second or successive petition. See Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) ("When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.") (citation and quotation marks omitted).
Rule 4 of the Rules Governing Section 2254 Cases in the United States Courts provides that "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." The Court therefore dismisses the Petition as a second or successive Petition for which it lacks jurisdiction.
IT IS THEREFORE ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. DATED: February 23, 2021
JOHN A. KRONSTADT
United States District Judge