Herman Jay Dixon v. D. Asuncion, No. 2:2016cv04460 - Document 15 (C.D. Cal. 2016)
Court Description: OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION) by Judge Virginia A. Phillips. On June 13, 2016, Petitioner constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. &# 167; 2254. Because he previously challenged the conviction here in a habeas action that the Court dismissed with prejudice, and because he lacks Ninth Circuit authorization for another such challenge, the Court lacks jurisdiction over the new 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.) (mp)
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Herman Jay Dixon v. D. Asuncion Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 NO. CV 16-4460-VAP (AGR) 17 ) ) ) ) ) ) ) ) ) ) ) ) 18 On June 13, 2016, Petitioner constructively filed a Petition for Writ of 12 13 14 15 HERMAN JAY DIXON, Petitioner, v. D. ASUNCION, WARDEN, Respondents. 16 OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION) 19 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. 20 Petitioner challenges his conviction in Los Angeles County Superior Court in 21 Case No. BA288736. Because he previously challenged the conviction here in a 22 habeas action that the Court dismissed with prejudice, and because he lacks 23 Ninth Circuit authorization for another such challenge, the Court lacks jurisdiction 24 over the new petition. 25 I. 26 PROCEDURAL BACKGROUND 27 28 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records in Petitioner’s prior federal habeas corpus action in the Central District. Dockets.Justia.com 1 On July 24, 2009, Petitioner, who was represented by counsel, filed a 2 petition for writ of habeas corpus in Dixon v. Gonzalez, CV 09-5396 VAP (AGR) 3 (“Dixon I”). The petition in Dixon challenged the same conviction and raised a 4 Batson challenge.1 The magistrate judge issued a Report and Recommendation 5 that recommended the petition be denied with prejudice. On February 29, 2012, 6 the Court issued an Order Accepting the Findings and Recommendation, a 7 Judgment, and an Order Denying a Certificate of Appealability. (Dkt. Nos. 18,19, 8 21.) Petitioner filed a notice of appeal. On February 8, 2013, the Ninth Circuit 9 denied a certificate of appealability. (Dkt. No. 26.) 10 On June 13, 2016, Petitioner constructively filed the current Petition and 11 challenges the same conviction and sentence. (Petition at 2.) Petitioner asserts 12 two grounds based on Double Jeopardy and ineffective assistance of trial 13 counsel. (Id., Attachment A at 7.) 14 II. 15 DISCUSSION 16 The Petition was filed after enactment of the Antiterrorism and Effective 17 Death Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA 18 in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997). 19 The AEDPA provides, in pertinent part: “Before a second or successive 20 application permitted by this section is filed in the district court, the applicant shall 21 move in the appropriate court of appeals for an order authorizing the district court 22 to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A district court does not 23 have jurisdiction to consider a “second or successive” petition absent 24 authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152 (2007); 25 Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (“When the AEDPA is in 26 play, the district court may not, in the absence of proper authorization from the 27 28 1 Batson v. Kentucky, 476 U.S. 79 (1986). 2 1 court of appeals, consider a second or successive habeas application.”) (citation 2 and quotation marks omitted). 3 Here, the Petition is a second or successive petition challenging the same 4 conviction and sentence imposed by the same judgment of the state court as in 5 Dixon I. Petitioner has not shown that he requested or obtained authorization 6 from the Ninth Circuit to file a second or successive petition. Rule 4 of the Rules 7 Governing Section 2254 Cases in the United States Courts provides that “[i]f it 8 plainly appears from the face of the petition and any attached exhibits that the 9 petitioner is not entitled to relief in the district court, the judge must dismiss the 10 petition and direct the clerk to notify the petitioner.” Summary dismissal is 11 warranted. 12 III. 13 ORDER 14 15 IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. 16 17 18 DATED: October 17, 2016 VIRGINIA A. PHILLIPS Chief United States District Judge 19 20 21 22 23 24 25 26 27 28 3
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