Vartan M. Stephan v. James Walker, No. 2:2009cv06394 - 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. See order for details. (hr)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 8 9 VARTAN M. STEPHAN, 10 Petitioner, vs. 11 JAMES WALKER [WARDEN], 12 Respondent. 13 ) Case No. CV 09-6394-RSWL(RC) ) ) ) ) OPINION AND ORDER ON A ) PETITION FOR HABEAS CORPUS ) ) ) 14 15 On September 2, 2009, petitioner Vartan M. Stephan, a person in 16 state custody proceeding pro se, filed a petition for writ of habeas 17 corpus under 28 U.S.C. § 2254 challenging his 25 years to life 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 Before a second or successive application permitted by this 28 U.S.C. § 2244(b)(3)(A). Section 2244(b)(3)(A) is an allocation of subject-matter 10 jurisdiction to the court of appeals. 11 second or successive petition [. . .] unless the court of appeals has 12 given approval for the filing. 13 Cir. 1999) (quoting Nunez v. United States, 96 F.3d 990, 991 (7th Cir. 14 1996)), cert. denied, 528 U.S. 1162 (2000); see also Cooper v. 15 Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001)( When the AEDPA is in 16 play, the district court may not, in the absence of proper authoriza- 17 tion from the court of appeals, consider a second or successive habeas 18 application. 19 1999)). 20 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 21 challenging petitioner s sentence. Moreover, it plainly appears on 22 the face of the petition that petitioner has not moved in the Ninth 23 Circuit Court of Appeals for an order authorizing this Court to 24 consider the instant successive petition. 25 habeas petition is not a matter of right -- and the gatekeeping 26 function belongs to the Court of Appeals, not to the district court. 27 Felker v. Turpin, 518 U.S. 651, 661, 116 S. Ct. 2333, 135 L. Ed. 2d 28 827 (1996). Under the Act, a successive This Court, thus, must dismiss the instant habeas corpus 2 1 petition as a successive petition for which it lacks subject matter 2 jurisdiction under 28 U.S.C. § 2244(b)(3). 3 Rule 4 of the Rules Governing Section 2254 Cases in the United 4 States Courts provides that [i]f it plainly appears from the petition 5 and any attached exhibits that the petitioner is not entitled to 6 relief in the district court, the judge must dismiss the petition and 7 direct the clerk to notify the petitioner. 8 Rule 4. 9 28 foll. U.S.C. § 2254, ORDER 10 IT IS HEREBY ORDERED that Judgment be entered SUMMARILY 11 DISMISSING the successive petition for writ of habeas corpus for lack 12 of subject matter jurisdiction. 13 14 15 IT IS FURTHER ORDERED that the Clerk shall notify petitioner of the dismissal. 16 17 DATE: September 11, 2009 HONORABLE RONALD S.W. LEW SENIOR U.S. DISTRICT COURT JUDGE 18 19 20 PRESENTED BY: 21 DATE: 22 /S/ ROSALYN M. CHAPMAN ROSALYN M. CHAPMAN UNITED STATES MAGISTRATE JUDGE 23 September 4, 2009 R&R-MDO\09-6394.mdo 24 9/4/09 25 26 27 28 3

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