Case No. EDCV 18-224 SVW(JC)
ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AND ACTION WITHOUT PREJUDICE
On or about January 16, 2018, petitioner Ernest Lee Turner, a California prisoner who is proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Current Federal Petition") in the Southern District of California. The matter was subsequently transferred to the Central District of California and was assigned to this Court on January 31, 2018. Petitioner challenges a judgment in Riverside County Superior Court in Case No. RIF111528 ("State Case").
Based on the record (including facts as to which this Court takes judicial notice as detailed below) and the applicable law, the Current Federal Petition and this action are dismissed without prejudice for lack of jurisdiction because petitioner did not obtain the requisite authorization from the Court of Appeals to file a successive petition. Further, the Clerk of the Court is directed to refer the Current Federal Petition to the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit") pursuant to Ninth Circuit Rule 22-3(a). II. PROCEDURAL HISTORY
Ninth Circuit Rule 22-3(a) provides in pertinent part: "Any petitioner seeking authorization to file a second or successive 2254 petition . . . in the district court must file an application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. § 2254 . . . . If a second or successive petition . . . is mistakenly submitted to the district court, the district court shall refer it to the [C]ourt of [A]ppeals."
The facts and procedural history set forth in this section are derived from the Current Federal Petition and supporting documents and dockets/court records in the following cases in the Central District of California ("CDCA"), the United States Court of Appeals for the Ninth Circuit ("Ninth Circuit"), and the United States Supreme Court ("U.S. Supreme Court") of which this Court takes judicial notice: (1) Ernest Lee Turner v. V.M. Almager, CDCA Case No. EDCV 07-533 SVW(JC) ("First Federal Petition" or "First Federal Action"); (2) Ernest Turner v. V.M. Almager, Ninth Circuit Case No. 11-57212 ("Ninth Circuit Action"); and (3) U.S. Supreme Court Case No. 12-10734 ("U.S. Supreme Court Action"). See Fed. R. Evid. 201; United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (court may take judicial notice of court records in other cases).
A. State Court Proceedings in State Case
On November 23, 2004, a Riverside County Superior Court jury found petitioner guilty of three counts of second degree robbery and found true allegations that petitioner had personally used a deadly and dangerous weapon in the commission of each such robbery. On November 24, 2004, in a bifurcated proceeding held after petitioner waived his right to a jury trial on prior conviction allegations, the court found such prior conviction allegations to be true. On January 10, 2005, the court sentenced petitioner to a total of 90 years to life in prison.
On November 14, 2005, the California Court of Appeal affirmed the judgment in the State Case. Petitioner did not further pursue a direct appeal. /// ///
Petitioner subsequently sought, and was denied, habeas relief in the Riverside County Superior Court, the California Court of Appeal, and the California Supreme Court.
B. First Federal Action, Ninth Circuit Action, and U.S. Supreme Court Action
On January 10, 2014, petitioner filed the First Federal Petition challenging the judgment in the State Case on multiple grounds. On October 19, 2011, this Court denied the First Federal Petition on its merits and dismissed the First Federal Action with prejudice. On October 21, 2011, judgment was entered accordingly.
On January 18, 2013, the Ninth Circuit issued an order denying petitioner's request for a certificate of appealability in the Ninth Circuit Action.
On October 7, 2013, the U.S. Supreme Court denied petitioner's petition for a writ of certiorari in the U.S. Supreme Court Action.
C. Current Federal Petition
As noted above, on or about January 16, 2018, petitioner filed the Current Federal Petition which again challenges the judgment in the State Case.
The record does not reflect that petitioner has obtained authorization from the Ninth Circuit to file the Current Federal Petition in District Court.
Before a habeas petitioner may file a second or successive petition in a district court, he must apply to the appropriate court of appeals for an order authorizing the district court to consider the application. Burton v. Stewart, 549 U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This provision "creates a 'gatekeeping' mechanism for the consideration of second or successive applications in district court." Felker v. Turpin, 518 U.S. 651, 657 (1996); see also Reyes v. Vaughn, 276 F. Supp. 2d 1027, 1028-30 (C.D. Cal. 2003) (discussing applicable procedures in Ninth Circuit). A district court lacks jurisdiction to consider the merits of a second or successive habeas petition in the absence of proper authorization from a court of appeals. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 F.3d 661, 664 (9th Cir. 1998)), cert. denied, 538 U.S. 984 (2003).
The court of appeals may authorize the filing of a second or successive petition only if it determines that the petition makes a prima facie showing that at least one claim within the petition satisfies the requirements of 28 U.S.C. Section 2244(b), i.e., that a claim which was not presented in a prior application (1) relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court; or (2) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence and the facts underlying the claim would be sufficient to establish that, but for constitutional errors, no reasonable factfinder would have found the applicant guilty of the underlying offense. Nevius v. McDaniel, 104 F.3d 1120, 1120-21 (9th Cir. 1997); Nevius v. McDaniel, 218 F.3d 940, 945 (9th Cir. 2000).
A second or subsequent habeas petition is not considered "successive" if the initial habeas petition was dismissed for a technical or procedural reason, rather than on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-487 (2000) (second habeas petition not "successive" if initial habeas petition dismissed for failure to exhaust state remedies); Stewart v. Martinez-Villareal, 523 U.S. 637, 643-645 (1998) (second habeas petition not "successive" if claim raised in first habeas petition dismissed as premature); but see McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (dismissal on statute of limitations grounds constitutes disposition on the merits rendering subsequent petition "second or successive"); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir.) (dismissal on procedural default grounds constitutes disposition on the merits rendering subsequent petition "second or successive"), cert. denied, 546 U.S. 884 (2005); Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 228 (1995) (dismissal for failure to prosecute treated as judgment on the merits) (citations omitted).
The First Federal Petition in the First Federal Action was denied on its merits - not for a technical or procedural reason. Accordingly, the Current Federal Petition is successive. Since petitioner filed the Current Federal Petition without authorization from the Ninth Circuit, this Court lacks jurisdiction to consider it.
IT IS THEREFORE ORDERED that the Current Federal Petition and this action are dismissed without prejudice. The Clerk of the Court is directed to refer the Current Federal Petition to the Ninth Circuit pursuant to Ninth Circuit Rule 22-3(a).
IT IS SO ORDERED. DATED: February 1, 2 018
HONORABLE STEPHEN V. WILSON
UNITED STATES DISTRICT JUDGE