Mose Weatherspoon, Jr. v. Wofford, No. 5:2013cv00910 - Document 4 (C.D. Cal. 2013)

Court Description: OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS by Judge Gary A. Feess. On May 20, 2013, Petitioner filed the instant Petition for Writ of Habeas Corpus by a Person in State Custody (Petition) pursuant to 28 U.S.C. § 2254 in which he cha llenges the same conviction. Here, the Petition is a second or successive petition that challenges the same conviction and sentence imposed by the same judgment of the state court as in Weatherspoon I. It plainly appears from the face of the Petitio n that Petitioner has not received authorization from the Ninth Circuit to file a second or successive petition. This court must, therefore, dismiss the Petition as a successive petition. IT IS HEREBY ORDERED that judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. (SEE ORDER FOR DETAILS.)for which (mp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MOSE WEATHERSPOON JR., 12 Petitioner, 13 14 v. WOFFORD, 15 Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) ) ) NO. EDCV 13-910-GAF (AGR) OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS 18 19 I. 20 PROCEDURAL BACKGROUND 21 On July 21, 2006, a Riverside County jury convicted Petitioner of unlawful 22 possession of a handgun and unlawful possession of ammunition. (Petition at 2). 23 Petitioner was sentenced to 26 years to life pursuant to California s Three Strikes 24 law. (Id.) 25 On June 4, 2010, Petitioner filed a petition for writ of habeas corpus 26 challenging his conviction in this court in Weatherspoon v. Uribe, Case No. EDCV 27 10-822-GAF-AGR ( Weatherspoon I ).1 On January 15, 2013, judgment was 28 1 Pursuant to Fed. R. Evid. 201, the court takes judicial notice of the records in the prior action. 1 entered denying the petition on the merits with prejudice. Id., Dkt. No. 13. 2 Petitioner did not appeal. 3 On May 20, 2013, Petitioner filed the instant Petition for Writ of Habeas 4 Corpus by a Person in State Custody ( Petition ) pursuant to 28 U.S.C. § 2254 in 5 which he challenges the same conviction. (Petition at 1.) 6 II. 7 DISCUSSION 8 The Petition was filed after enactment of the Antiterrorism and Effective 9 Death Penalty Act of 1996 ( AEDPA ). Therefore, the court applies the AEDPA in 10 reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059, 138 11 L. Ed. 2d 481 (1997). 12 The AEDPA provides, in pertinent part: Before a second or successive 13 application permitted by this section is filed in the district court, the applicant shall 14 move in the appropriate court of appeals for an order authorizing the district court 15 to consider the application. 28 U.S.C. § 2244(b)(3)(A). A district court does not 16 have jurisdiction to consider a second or successive petition absent 17 authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152, 127 S. 18 Ct. 793, 166 L. Ed. 2d 628 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th 19 Cir. 2001) ( When the AEDPA is in play, the district court may not, in the absence 20 of proper authorization from the court of appeals, consider a second or 21 successive habeas application. ) (citation and quotation marks omitted). 22 Here, the Petition is a second or successive petition that challenges the 23 same conviction and sentence imposed by the same judgment of the state court 24 as in Weatherspoon I. 25 It plainly appears from the face of the Petition that Petitioner has not 26 received authorization from the Ninth Circuit to file a second or successive 27 petition. This court must, therefore, dismiss the Petition as a successive petition 28 2 1 for which it lacks jurisdiction under 28 U.S.C. § 2244(b)(3). See Burton, 549 U.S. 2 at 152. 3 Rule 4 of the Rules Governing Section 2254 Cases in the United States 4 Courts provides that [i]f it plainly appears from the face of the petition and any 5 attached exhibits that the petitioner is not entitled to relief in the district court, the 6 judge must dismiss the petition and direct the clerk to notify the petitioner. Here, 7 summary dismissal is warranted. 8 III. 9 ORDER 10 11 IT IS HEREBY ORDERED that judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. 12 13 DATED: May 28, 2013 GARY A. FEESS United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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