Lewisv.McEwen

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA EASTERN DIVISIONDec 2, 2011
Case No. EDCV 11-1835-SJO(AJW) (C.D. Cal. Dec. 2, 2011)

Case No. EDCV 11-1835-SJO(AJW)

12-02-2011

MR. LORAN LEWIS, Petitioner, v. SCOTT MCEWEN (WARDEN), Respondent.


MEMORANDUM AND ORDER DISMISSING PETITION

This is the third habeas corpus petition petitioner has filed in this court challenging his 2001 in the San Bernardino Superior Court.[See Petition at 2]. Petitioner's first petition was dismissed without prejudice for failure to exhaust state remedies. Case No. CV 03-936-RSWL(AJW). Petitioner's second petition, which raised three claims for relief, was denied on the merits on January 29, 2007. Case No. CV 04-1315-RSWL(AJW) . In this third petition, petitioner again challenges his 2001 conviction, raising three new claims for relief. [See Petition at 5-6 and attached pages].

The Court may properly take judicial notice of such "matters of public record." See Fed.R.Evid. 201; Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001).

A federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). A federal court also must dismiss a second or successive petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, retroactive, constitutional right or (2) the factual basis of the claim was not previously discoverable through due diligence, and the new facts establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). It is not the district court, however, that decides whether a second or successive petition meets the requirements permitting a petitioner to file a second or successive petition. Rather, "[b]efore 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); see Felker v. Turpin, 518 U.S. 651, 656-657 (1996). Absent authorization from the court of appeals, this court lacks jurisdiction over this second or successive petition. Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir.), cert, denied, 519 U.S. 1102 (1997).

Because petitioner has not obtained leave from the Court of Appeals to file a successive petition, this court lacks jurisdiction to consider it. Accordingly, the petition is dismissed.

It is so ordered.

S. James Otero


United States District Judge