Jorge Luis Ruvalcaba v. Neil McDowell, No. 2:2016cv06864 - Document 5 (C.D. Cal. 2016)
Court Description: OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION) by Judge David O. Carter. On September 13, 2016, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. Petit ioner challenges multiple 2006 burglary convictions in Los Angeles County Superior Court. Because he previously challenged those convictions 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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Jorge Luis Ruvalcaba v. Neil McDowell Doc. 5 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JORGE LUIS RUVALCABA, 12 Petitioner, 13 v. 14 NEIL McDOWELL, 15 Respondent. 16 17 18 ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 16-6864-DOC (AGR) OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION) On September 13, 2016, Petitioner filed a Petition for Writ of Habeas 19 Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. Petitioner 20 challenges multiple 2006 burglary convictions in Los Angeles County Superior 21 Court. Because he previously challenged those convictions here in a habeas 22 action that the Court dismissed with prejudice, and because he lacks Ninth Circuit 23 authorization for another such challenge, the Court lacks jurisdiction over the new 24 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 actions in the Central District. Dockets.Justia.com 1 The Petition and judicially-noticeable records indicate that Petitioner 2 pleaded no contest to seven counts of residential burglary, with gang 3 enhancements, in 2006. After denying his motion to withdraw his plea, the court 4 sentenced him to prison for the plea-bargained term of 24 years. See People v. 5 Ruvalcaba, No. B196149, 2008 WL 217713 (Cal. Ct. App. 2d Dist.). 6 On July 21, 2009, petitioner filed a Petition for Writ of Habeas Corpus in 7 this Court in case number CV 09-5300-DOC (AGR) (Ruvalcaba I). Petitioner 8 challenged the same 2006 convictions. On February 10, 2012, the Court 9 accepted the Magistrate Judge’s Report And Recommendation, denied the 10 habeas petition with prejudice, and denied a certificate of appealability. (Dkt. 11 Nos. 44, 47, 48, 49 in Ruvalcaba I.) Petitioner did not file a Notice of Appeal, nor 12 does the docket reflect that he sought a certificate of appealability from the Ninth 13 Circuit. 14 On September 13, 2016, Petitioner filed the current Petition. Petitioner 15 again challenges the 2006 convictions, asserting that his trial counsel failed to 16 conduct a reasonable pre-plea investigation and that he (Petitioner) is actually 17 innocent. (Petition at 5-6.) 18 II. 19 DISCUSSION 20 The Petition was filed after enactment of the Antiterrorism and Effective 21 Death Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA 22 in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336 (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 (2007); 2 1 Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (“When the AEDPA is in 2 play, the district court may not, in the absence of proper authorization from the 3 court of appeals, consider a second or successive habeas application.”) (citation 4 and quotation marks omitted). 5 Here, the Petition is a second or successive petition challenging the same 6 2006 convictions as in Ruvalcaba I. Petitioner has not obtained the required 7 authorization from the Ninth Circuit for filing another habeas challenge to the 8 same conviction. 9 Rule 4 of the Rules Governing Section 2254 Cases in the United States 10 Courts provides that “[i]f it plainly appears from the face of the petition and any 11 attached exhibits that the petitioner is not entitled to relief in the district court, the 12 judge must dismiss the petition and direct the clerk to notify the petitioner.” Here, 13 summary dismissal is warranted. 14 III. 15 ORDER 16 17 IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. 18 19 DATED: September 28, 2016 DAVID O. CARTER United States District Judge 20 21 22 23 24 25 26 27 28 3
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