Christopher James Sloat v. M. Smelosky, No. 2:2009cv00454 - Document 3 (C.D. Cal. 2009)
Court Description: MEMORANDUM ORDER AND OPINION Dismissing Successive Petition for Writ of Habeas Corpus by Judge Otis D Wright, II (ade)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 12 CHRISTOPHER SLOAT, 13 Petitioner, 14 v. 15 M. SMELOSKY, Warden, Respondent. 16 ) ) ) ) ) ) ) ) ) ) Case No. CV 09-0454-ODW (MLG) MEMORANDUM AND ORDER DISMISSING SUCCESSIVE PETITION FOR WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY 17 18 19 I. Factual and Procedural Background 20 Petitioner is a state prisoner currently incarcerated at the 21 Centinela State Prison in Imperial, California. He filed this petition 22 for writ of habeas corpus on January 21, 2009. Because this is 23 Petitioner s second petition challenging the identical underlying state 24 court conviction, this petition must be dismissed as successive under 25 28 U.S.C. § 2244(b)(3)(A). 26 The petition challenges a November 2006 judgment from the Los 27 Angeles County Superior Court, in which Petitioner was sentenced to a 28 term of 13 years following conviction of three counts of assault with 1 a deadly weapon (automobile). Cal. Penal Code §§ 245(a)(1). The 2 California Court of Appeal affirmed the conviction and sentence on 3 November 20, 2007. The California Supreme Court denied review on 4 January 23, 2008. 5 On February 29, 2008, Petitioner filed a petition for writ of 6 habeas corpus in this court, challenging the judgment of conviction. 7 Sloat v. Almager, Case No. CV 08-1420-ODW (MLG). In that petition, he 8 raised claims of ineffective assistance of counsel and violation of his 9 Fourteenth Amendment due process right to a fair trial. Noting that 10 Petitioner had failed to raise the ineffective assistance of counsel 11 claim in state court, this Court issued a Report and Recommendation on 12 March 6, 2008, recommending that the petition be dismissed for failure 13 to exhaust all claims. The Court vacated the Report and Recommendation 14 on March 20, 2008, after Plaintiff filed a first amended petition 15 withdrawing the unexhausted claim. On October 8, 2008, an order and 16 judgment was entered denying the petition on the merits. No appeal was 17 taken from this judgment. 18 The current petition reveals that in May 2008, while the previous 19 federal habeas corpus petition was pending, Petitioner filed a petition 20 for writ of habeas corpus in the California Supreme Court raising the 21 unexhausted ineffective assistance claim and an additional claim that 22 his conviction was based on perjured testimony. The California Supreme 23 Court denied that petition on October 16, 2008. 24 This petition followed. In this petition, Sloat again challenges 25 the state court judgment entered in November 2006, this time raising 26 the claims recently rejected by the California Supreme Court. For the 27 reasons set forth below, the petition is ordered dismissed without 28 prejudice to Petitioner s right to apply for leave to file a successive 2 1 petition with the United States Court of Appeals for the Ninth Circuit. 2 3 II. Discussion. 4 Pursuant to Rule 4 of the Rules Governing Section 2254 Cases in 5 the United States District Court, a district court may summarily 6 dismiss a habeas petition, before the respondent files an answer, "[i]f 7 it 8 petitioner is not entitled to relief." The notes to Rule 4 state: "a 9 dismissal may be called for on procedural grounds, which may avoid 10 burdening the respondent with the necessity of filing an answer on the 11 substantive merits of the petition." See Boyd v. Thompson, 147 F.3d 12 1124, 1127-28 (9th Cir. 1998). It is beyond question that this Court 13 lacks jurisdiction to review this petition without authorization from 14 the court of appeals. Accordingly, summary dismissal of this petition 15 is warranted. 16 The plainly appears present from petition the is face of governed the by petition the ... that provisions of the the 17 Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132, 18 110 Stat. 1214) ( AEDPA ), enacted on April 24, 1996. 19 things, AEDPA amended 28 U.S.C. § 2244 to require that [b]efore a 20 second or successive application [for writ of habeas corpus] permitted 21 by this section is filed in the district court, the applicant shall 22 move in the appropriate court of appeals for an order authorizing the 23 district court to consider the application. 28 U.S.C. § 2244(b)(3)(A). 24 Section 25 successive petition, like the one in this case, requires Ninth Circuit 26 approval before it can be considered by the district court. Burton v. 27 Stewart, 549 U.S. 147, 127 S.Ct. 793, 796 (2007). This Court must 28 dismiss any second or successive petition unless the court of appeals 2244(b)(3)(A) explicitly provides 3 that a Among other second and/or 1 has given Petitioner leave to file the petition because a district 2 court lacks subject-matter jurisdiction over a second or successive 3 petition. Pratt v. United States, 129 F.3d 54, 57 (1st Cir. 1997); 4 Greenawalt v. Stewart, 105 F.3d 1268, 1277 (9th Cir. 1997), cert. 5 denied, 519 U.S. 1102 (1997); Nunez v. United States, 96 F.3d 990, 991 6 (7th Cir. 1996). 7 A claim in a second or successive habeas petition which was not 8 previously presented may be considered if the petitioner shows that the 9 claim relies upon a new rule of constitutional law, made retroactive to 10 cases on collateral review by the Supreme Court, that was previously 11 unavailable. 28 U.S.C. § 2244(b)(2)(A). However, a petitioner is still 12 required to seek authorization from the court of appeals in order to 13 have 14 2244(b)(3)(A), see also Reyes v. Te Vaughn, 276 F.Supp.2d 1027, 1030 15 (C.D.Cal. 2003) ( [T]o the extent that petitioner would like to show 16 that he falls within one of the exceptions to dismissal of successive 17 habeas petitions, 28 U.S.C. § 2244(b)(2)(B), he must first present any 18 such claim to the Court of Appeals rather than to this Court. )1 the district court consider the petition. 28 U.S.C. § 19 This petition was filed without leave of the Ninth Circuit. Until 20 the Ninth Circuit authorizes the filing of this petition, this Court 21 lacks jurisdiction to consider the merits. See Burton, 127 S.Ct. at 22 799; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001); Nunez v. 23 United States, 96 F.3d 990, 991 (7th Cir. 1996)(district court lacks 24 subject matter jurisdiction to consider second or successive petition). 25 Thus, dismissal of the petition without prejudice is required. 26 27 1 28 Moreover, Petitioner has not shown that the Supreme Court has held Cunningham to be retroactive on collateral review. 4 1 III. Order. 2 In accordance with the foregoing, IT IS HEREBY ORDERED that the 3 petition is DISMISSED without prejudice to petitioner s applying to the 4 United States Court of Appeals for the Ninth Circuit for leave to file 5 a second or successive petition. 6 IT IS FURTHER ORDERED that the clerk shall serve a copy of this 7 order 8 California. on Petitioner and the Attorney General for the State 9 10 Dated: _January 28, 2009 11 12 13 Otis D. Wright, II United States District Judge 14 15 16 Presented by: 17 18 19 _______________________________ Marc L. Goldman United States Magistrate Judge 20 21 22 23 24 25 26 27 28 5 of
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