Terrence McCrea v. John Marshall, No. 2:2009cv06026 - Document 4 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS by Judge John F. Walter; IT IS HEREBY ORDERED that Judgment be entered SUMMARILY DISMISSING the petition for writ of habeas corpus for lack of subject matter jurisdiction. IT IS FURTHER ORDERED that the Clerk shall notify petitioner of the dismissal. (jy)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 TERRENCE McCREA, aka TERRANCE McCREA, 12 Petitioner, 13 vs. 14 JOHN MARSHALL, WARDEN, 15 Respondent. ) Case No. CV 09-6026-JFW(RC) ) ) ) ) ) OPINION AND ORDER ON A ) PETITION FOR HABEAS CORPUS ) ) ) 16 17 On August 18, 2009, petitioner Terrence McCrea, aka Terrance 18 McCrea, a person in state custody proceeding pro se, filed a petition 19 for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 20 conviction and sentence in Los Angeles County Superior Court case no. 21 TA038269. 22 23 BACKGROUND 24 This Court, pursuant to Federal Rule of Evidence 201, takes 25 judicial notice of the records in a prior federal habeas corpus action 26 brought by petitioner: 27 PA(SH) ( McCrea I ). 28 2004, petitioner filed his first federal habeas corpus petition (1) McCrea v. LaMarque, case no. CV 04-2212- The records in McCrea I show that on March 31, 1 challenging the same criminal judgment he challenges here, and on 2 November 2, 2004, Judgment was entered in McCrea I denying the habeas 3 petition on the merits and dismissing the action. 4 appealed the Judgment to the Ninth Circuit Court of Appeals, which 5 affirmed the Judgment on February 16, 2006. The petitioner 6 DISCUSSION 7 8 The instant petition is governed by the provisions of the 9 Antiterrorism and Effective Death Penalty Act of 1996 ( the Act ). 10 Section 106 of the Act amends 28 U.S.C. § 2244(b) to read, in 11 pertinent part, as follows: 12 application permitted by this section is filed in the district court, 13 the applicant shall move in the appropriate court of appeals for an 14 order authorizing the district court to consider the application. 15 28 U.S.C. § 2244(b)(3)(A). Before a second or successive 16 Section 2244(b)(3)(A) is an allocation of subject-matter 17 18 jurisdiction to the court of appeals. A district court must dismiss a 19 second or successive petition [. . .] unless the court of appeals has 20 given approval for the filing. 21 Cir. 1999) (quoting Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 22 1996)), cert. denied, 528 U.S. 1162 (2000); see also Cooper v. 23 Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001)( When the AEDPA is in 24 play, the district court may not, in the absence of proper authoriza- 25 tion from the court of appeals, consider a second or successive habeas 26 application. 27 1999)). 28 // In re Page, 170 F.3d 659, 661 (7th (quoting Libby v. Magnusson, 177 F.3d 43, 46 (1st Cir. 2 Here, the instant petition is a second or successive petition 1 2 challenging petitioner s conviction and sentence, which raises claims 3 petitioner could have raised in McCrea I. 4 appears on the face of the petition that petitioner has not moved in 5 the Ninth Circuit Court of Appeals for an order authorizing this Court 6 to consider the instant successive petition. 7 successive habeas petition is not a matter of right -- and the 8 gatekeeping function belongs to the Court of Appeals, not to the 9 district court. Moreover, it plainly Under the Act, a Felker v. Turpin, 518 U.S. 651, 661, 116 S. Ct. 2333, 10 135 L. Ed. 2d 827 (1996). This Court, thus, must dismiss the instant 11 habeas corpus petition as a successive petition for which it lacks 12 subject matter jurisdiction under 28 U.S.C. § 2244(b)(3). 13 14 Rule 4 of the Rules Governing Section 2254 Cases in the United 15 States Courts provides that [i]f it plainly appears from the petition 16 and any attached exhibits that the petitioner is not entitled to 17 relief in the district court, the judge must dismiss the petition and 18 direct the clerk to notify the petitioner. 19 Rule 4. 28 foll. U.S.C. § 2254, 20 21 ORDER 22 IT IS HEREBY ORDERED that Judgment be entered SUMMARILY 23 DISMISSING the petition for writ of habeas corpus for lack of subject 24 matter jurisdiction. 25 // 26 // 27 // 28 // 3 1 2 IT IS FURTHER ORDERED that the Clerk shall notify petitioner of the dismissal. 3 4 DATE: August 20, 2009 JOHN F. WALTER UNITED STATES DISTRICT JUDGE 5 6 PRESENTED BY: 7 DATE: August 19, 2009 8 9 10 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 11 12 R&R-MDO\09-6026.mdo 8/19/09 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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