Nelson Hernandez v. A K Holland, No. 2:2012cv04701 - Document 4 (C.D. Cal. 2012)

Court Description: OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS by Judge Dale S. Fischer. On May 30, 2012, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody (Petition) pursuant to 28 U.S.C. § 2254. Petitioner challenges his conviction in Los Angeles County Superior Court in 2003. IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. (See Order for details.) (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 NELSON HERNANDEZ, Petitioner, 13 14 15 v. K. HOLLAND, Respondent. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 12-4701-DSF (AGR) OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS On May 30, 2012, Petitioner filed a Petition for Writ of Habeas Corpus by a 19 Person in State Custody ( Petition ) pursuant to 28 U.S.C. § 2254. Petitioner 20 challenges his conviction in Los Angeles County Superior Court in 2003. 21 (Petition at 2.) 22 I. 23 PROCEDURAL BACKGROUND 24 Pursuant to Fed. R. Evid. 201, this 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, Hernandez v. Hedgpeth, Case No. CV 07-7036-DSF (AGR) 27 ( Hernandez I ). (See also Petition at 1.) 28 1 On September 18, 2003, a Los Angeles County jury convicted Petitioner of 2 first degree murder and found true various sentencing enhancements. (Petition 3 at 2). Petitioner s sentence was 50 years to life. (Id.) 4 In Hernandez I, a Report and Recommendation ( R&R ) was issued on the 5 merits on January 11, 2011. On February 7, 2011, the R&R was adopted and 6 judgment was entered dismissing the petition with prejudice. Hernandez I, Dkt. 7 Nos. 34, 40, 41.) The matter is currently on appeal. See Ninth Circuit Docket, 8 Case No. 11-55337. 9 II. 10 DISCUSSION 11 The Petition was filed after enactment of the Antiterrorism and Effective 12 Death Penalty Act of 1996 ( AEDPA ). Therefore, the Court applies the AEDPA 13 in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 14 138 L. Ed. 2d 481 (1997). 15 The AEDPA provides, in pertinent part: Before a second or successive 16 application permitted by this section is filed in the district court, the applicant shall 17 move in the appropriate court of appeals for an order authorizing the district court 18 to consider the application. 28 U.S.C. § 2244(b)(3)(A). A district court does not 19 have jurisdiction to consider a second or successive petition absent 20 authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152, 127 S. 21 Ct. 793, 166 L. Ed. 2d 628 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 22 Cir. 2001) ( When the AEDPA is in play, the district court may not, in the absence 23 of proper authorization from the court of appeals, consider a second or 24 successive habeas application. ) (citation and quotation marks omitted). 25 Here, the Petition is a second or successive petition that challenges the 26 same conviction and sentence imposed by the same judgment of the state court 27 as in Hernandez I. 28 2 1 A federal court must dismiss a second or successive petition that raises the 2 same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). A court must also 3 dismiss a second or successive petition raising a new ground unless the 4 petitioner can show that (1) the claim rests on a new, retroactive, constitutional 5 right or (2) the factual basis of the claim was not previously discoverable through 6 due diligence, and those new facts establish by clear and convincing evidence 7 that but for the constitutional error, no reasonable factfinder would have found the 8 applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). It is not 9 the district court, however, that decides whether a second or successive petition 10 meets the requirements permitting a petitioner to file a second or successive 11 petition. Rather, [b]efore a second or successive application permitted by this 12 section is filed in the district court, the applicant shall move in the appropriate 13 court of appeals for an order authorizing the district court to consider the 14 application. 28 U.S.C. § 2244(b)(3)(A); see also Felker v. Turpin, 518 U.S. 651, 15 657, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). Absent authorization from the 16 Ninth Circuit, this court lacks jurisdiction over the instant Petition. Cooper, 274 17 F.3d at 1274. 18 Rule 4 of the Rules Governing Section 2254 Cases in the United States 19 Courts provides that [i]f it plainly appears from the face of the petition and any 20 attached exhibits that the petitioner is not entitled to relief in the district court, the 21 judge must dismiss the petition and direct the clerk to notify the petitioner. Here, 22 summary dismissal is warranted. 23 24 25 26 27 28 3 1 III. 2 ORDER 3 4 5 6 IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. 6/5/12 DATED: ______________________ DALE S. FISCHER United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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