-AGR Clifton Butler v. Unknown, No. 2:2011cv04267 - Document 3 (C.D. Cal. 2011)

Court Description: OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS by Judge John F. Walter. On May 18, 2011, Petitioner, proceeding pro se, filed a Petition for Writ of Habeas Corpus By a Person in State Custody (Petition) pursuant to 28 U.S.C. § 2254. The Petition challenges his conviction in Los Angeles County Superior Court in 1996. IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CLIFTON BUTLER, 12 Petitioner, 13 14 15 ) ) ) ) ) ) ) ) ) ) ) ) v. UNKNOWN, Respondent. 16 17 18 NO. CV 11-4267-JFW (AGR) OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS On May 18, 2011, Petitioner, proceeding pro se, filed a Petition for Writ of 19 Habeas Corpus By a Person in State Custody ( Petition ) pursuant to 28 U.S.C. § 20 2254. The Petition challenges his conviction in Los Angeles County Superior 21 Court in 1996. (Petition at 2.) 22 23 I. PROCEDURAL HISTORY 24 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records 25 in a prior federal habeas corpus action brought by Petitioner in the Central District 26 of California: Clifton C. Butler v. A.A. Lamarque, CV 00-7564-DT (CT) ( Butler I ). 27 On January 22, 1996, a Los Angeles County jury convicted Petitioner of 28 second degree murder. (Petition at 2.) On May 13, 1996, the court sentenced 1 him to 15 years to life plus 5 years. (Id.) On July 11, 1997, the California Court 2 of Appeal affirmed the judgment. (Id. at 3.) On October 15, 1997, the California 3 Supreme Court denied the petition for review. (Id.) His habeas subsequent 4 habeas petitions from 1998 through May 2010 were all denied. See California 5 Appellate Courts online docket, Case Nos. S074378, B216465, B224051, 6 S177806. 7 In Butler I, on July 12, 2000, Petitioner filed a Petition for Writ of Habeas 8 Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. On 9 November 14, 2000, the District Court issued an Order Accepting Report and 10 Recommendation of United States Magistrate Judge and Judgment denying the 11 petition with prejudice based on expiration of the statute of limitations. Butler I, 12 Dkt. Nos. 15-16. On December 15, 2000, Petitioner filed a Notice of Appeal. Id., 13 Dkt. No. 17. On August 20, 2001, the Ninth Circuit denied the certificate of 14 appealability. Id., Dkt. No. 22. 15 16 The current Petition challenges the same conviction and sentence as Butler I. (Petition at 2.) 17 II. 18 DISCUSSION 19 The Petition was filed after enactment of the Antiterrorism and Effective 20 Death Penalty Act of 1996 ( AEDPA ). Therefore, the Court applies the AEDPA 21 in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 22 138 L. Ed. 2d 481 (1997). 23 The AEDPA provides, in pertinent part: Before a second or successive 24 application permitted by this section is filed in the district court, the applicant shall 25 move in the appropriate court of appeals for an order authorizing the district court 26 to consider the application. 28 U.S.C. § 2244(b)(3)(A). A district court does not 27 have jurisdiction to consider a second or successive petition absent 28 authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152, 127 S. 2 1 Ct. 793, 166 L. Ed. 2d 628 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 2 Cir. 2001) ( When the AEDPA is in play, the district court may not, in the absence 3 of proper authorization from the court of appeals, consider a second or 4 successive habeas application. ) (citation and quotation marks omitted) 5 Here, the Petition is a second or successive petition that challenges the 6 same conviction and sentence imposed by the same judgment of the state court 7 as in Butler I. (Petition at 2.) The petition in Butler I was denied with prejudice as 8 untimely. Butler I, Dkt. Nos. 12, 15-16. [D]ismissal of a section 2254 habeas 9 petition for failure to comply with the statute of limitations renders subsequent 10 petitions second or successive for purposes of the AEDPA. McNabb v. Yates, 11 576 F.3d 1028, 1030 (9th Cir. 2009). 12 It plainly appears from the face of the Petition that Petitioner has not 13 received authorization from the Ninth Circuit Court of Appeals to file a second or 14 successive petition. This Court must, therefore, dismiss the Petition as a 15 successive petition for which it lacks jurisdiction under 28 U.S.C. § 2244(b)(3). 16 See Burton, 549 U.S. at 152. 17 Rule 4 of the Rules Governing Section 2254 Cases in the United States 18 Courts provides that [i]f it plainly appears from the face of the petition and any 19 attached exhibits that the petitioner is not entitled to relief in the district court, the 20 judge must dismiss the petition and direct the clerk to notify the petitioner. Here, 21 summary dismissal is warranted. 22 III. 23 ORDER 24 25 26 IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. DATED: June 13, 2011 JOHN F. WALTER United States District Judge 27 28 3

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