Vartan Stephan v. Edmund G. Brown, Jr., No. 2:2009cv06268 - Document 3 (C.D. Cal. 2009)

Court Description: OPINION AND ORDER ON A PETITION FOR HABEAS CORPUS by Judge Ronald S.W. Lew; IT IS HEREBY ORDERED that Judgment be entered SUMMARILY DISMISSING the successive 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 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 8 9 VARTAN STEPHAN, aka VARTAN M. STEPHAN, 10 Petitioner, 11 vs. 12 ATTORNEY GENERAL, EDMUND G. BROWN, JR., 13 Respondent. 14 ) Case No. CV 09-6268-RSWL(RC) ) ) ) ) ) OPINION AND ORDER ON A ) PETITION FOR HABEAS CORPUS ) ) ) ) 15 On August 27, 2009, petitioner Vartan Stephan, aka Vartan M. 16 Stephan, a person in state custody proceeding pro se, filed a petition 17 for writ of habeas corpus under 28 U.S.C. § 2254 challenging his 18 sentence in Los Angeles County Superior Court case no. GA024107. 19 BACKGROUND 20 This Court, pursuant to Federal Rule of Evidence 201, takes 21 judicial notice of the records in a prior federal habeas corpus action 22 brought by petitioner: 23 RSWL(RC) ( Stephan I ). 24 March 27, 1998, petitioner filed a federal habeas corpus petition 25 challenging the same criminal judgment he challenges here, and on 26 October 16, 1998, Judgment was entered in Stephan I denying the habeas 27 petition on the merits and dismissing the action. 28 not appeal the Judgment to the Ninth Circuit Court of Appeals. (1) Stephan v. Galasa, case no. CV 98-2225The records in Stephan I show that on The petitioner did DISCUSSION 1 2 The instant petition is governed by the provisions of Section 106 3 of the Antiterrorism and Effective Death Penalty Act of 1996 ( the 4 Act ), which amends 28 U.S.C. § 2244(b) to read, in pertinent part, as 5 follows: 6 section is filed in the district court, the applicant shall move in 7 the appropriate court of appeals for an order authorizing the district 8 court to consider the application. 9 28 U.S.C. § 2244(b)(3)(A). 10 Before a second or successive application permitted by this Section 2244(b)(3)(A) is an allocation of subject-matter 11 jurisdiction to the court of appeals. 12 second or successive petition [. . .] unless the court of appeals has 13 given approval for the filing. 14 Cir. 1999) (quoting Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 15 1996)), cert. denied, 528 U.S. 1162 (2000); see also Cooper v. 16 Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001)( When the AEDPA is in 17 play, the district court may not, in the absence of proper authoriza- 18 tion from the court of appeals, consider a second or successive habeas 19 application. 20 1999)). 21 A district court must dismiss a In re Page, 170 F.3d 659, 661 (7th (quoting Libby v. Magnusson, 177 F.3d 43, 46 (1st Cir. Here, the instant petition is a second or successive petition 22 challenging petitioner s sentence, which raises claims petitioner 23 could have raised in Stephan I. 24 face of the petition that petitioner has not moved in the Ninth Cir- 25 cuit Court of Appeals for an order authorizing this Court to consider 26 the instant successive petition. 27 petition is not a matter of right -- and the gatekeeping function 28 belongs to the Court of Appeals, not to the district court. Moreover, it plainly appears on the Under the Act, a successive habeas 2 Felker v. 1 Turpin, 518 U.S. 651, 661, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). 2 This Court, thus, must dismiss the instant habeas corpus petition as a 3 successive petition for which it lacks subject matter jurisdiction 4 under 28 U.S.C. § 2244(b)(3). 5 Rule 4 of the Rules Governing Section 2254 Cases in the United 6 States Courts provides that [i]f it plainly appears from the petition 7 and any attached exhibits that the petitioner is not entitled to 8 relief in the district court, the judge must dismiss the petition and 9 direct the clerk to notify the petitioner. 10 Rule 4. 11 12 28 foll. U.S.C. § 2254, ORDER IT IS HEREBY ORDERED that Judgment be entered SUMMARILY 13 DISMISSING the successive petition for writ of habeas corpus for lack 14 of subject matter jurisdiction. 15 16 IT IS FURTHER ORDERED that the Clerk shall notify petitioner of the dismissal. 17 18 DATE: September 2, 2009 HONORABLE RONALD S.W. LEW SENIOR U.S. DISTRICT COURT JUDGE 19 20 21 22 PRESENTED BY: DATE: August 31, 2009 23 24 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE R&R-MDO\09-6268.mdo - 8/31/09 25 26 27 28 3

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