Angel Hernandez v. S. Hatton et al, No. 2:2016cv07576 - Document 6 (C.D. Cal. 2016)
Court Description: OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION) by Judge George H. Wu. On October 11, 2016, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 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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Angel Hernandez v. S. Hatton et al Doc. 6 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 16 17 18 ANGEL HERNANDEZ, Petitioner, v. S. HATTON, WARDEN, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 16-7576-GW (AGR) OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION) On October 11, 2016, Petitioner filed a Petition for Writ of Habeas Corpus 19 by a Person in State Custody pursuant to 28 U.S.C. § 2254. Petitioner 20 challenges his 2008 conviction of various crimes in Los Angeles County Superior 21 Court and his resulting “second strike” sentence of 63 years in prison. Because 22 he previously challenged the conviction here in a habeas action that the Court 23 dismissed with prejudice, and because he lacks Ninth Circuit authorization for 24 another such challenge, the Court lacks jurisdiction 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 actions in the Central District. Dockets.Justia.com 1 The Petition and judicially-noticeable records indicate that Petitioner was 2 convicted of several robberies and other crimes, with gun-use enhancements, in 3 2008. He “admitted that he suffered a prior conviction for a serious felony, which 4 qualified as a strike under the Three Strikes Law. . . . The trial court sentenced 5 [him] to 63 years in state prison.” See People v. Hernandez, No. B210246, 2009 6 WL 3823912 (Cal. Ct. App. 2d Dist.). 7 On October 11, 2012, petitioner filed a Petition for Writ of Habeas Corpus 8 in this Court in case number CV 12-8716-GW (AGR) (Hernandez I). Petitioner 9 challenged the same 2008 convictions. On May 4, 2015, the Court accepted the 10 Magistrate Judge’s Report And Recommendation, denied the habeas petition 11 with prejudice as untimely, and denied a certificate of appealability. (Dkt. Nos. 12 46, 51, 52, 53 in Hernandez I.) Petitioner did not file a Notice of Appeal, nor does 13 the docket reflect that he sought a certificate of appealability from the Ninth 14 Circuit. 15 16 On October 11, 2016, Petitioner filed the current Petition. Petitioner challenges the same 2008 convictions and the enhancement of his sentence. 17 II. 18 DISCUSSION 19 The Petition was filed after enactment of the Antiterrorism and Effective 20 Death Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA 21 in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997). 22 The AEDPA provides, in pertinent part: “Before a second or successive 23 application permitted by this section is filed in the district court, the applicant shall 24 move in the appropriate court of appeals for an order authorizing the district court 25 to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A district court does not 26 have jurisdiction to consider a “second or successive” petition absent 27 authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152 (2007); 28 Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (“When the AEDPA is in 2 1 play, the district court may not, in the absence of proper authorization from the 2 court of appeals, consider a second or successive habeas application.”) (citation 3 and quotation marks omitted). 4 Here, the Petition is a second or successive petition challenging the same 5 conviction and sentence imposed by the same judgment of the state court as in 6 Hernandez I. See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (“We 7 hold that the dismissal of a habeas petition as untimely constitutes a disposition 8 on the merits and that a further petition challenging the same conviction would be 9 ‘second or successive’ for purposes of 28 U.S.C. § 2244(b).”), followed by 10 Brandon v. Los Angeles County Sup. Ct., No. 15-2187-CAS, 2015 WL 1541567, 11 *3 (C.D. Cal. April 2, 2015) (same). 12 Rule 4 of the Rules Governing Section 2254 Cases in the United States 13 Courts provides that “[i]f it plainly appears from the face of the petition and any 14 attached exhibits that the petitioner is not entitled to relief in the district court, the 15 judge must dismiss the petition and direct the clerk to notify the petitioner.” Here, 16 summary dismissal is warranted. 17 III. 18 ORDER 19 20 IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. 21 22 23 DATED: October 18, 2016 GEORGE H. WU United States District Judge 24 25 26 27 28 3
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