Gabriel Mendez v. Waren Montgomery, No. 2:2016cv08261 - Document 4 (C.D. Cal. 2016)
Court Description: OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION) 1 by Judge Otis D. Wright, II. On November 7, 2016, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. § 2254. Petitioner challenges his continued imprisonment for a 1990 plea-bargained murder conviction and sentence of 16 years to life. Because he previously challenged the same underlying state-court judgment here in a habeas action that the Court dismisse d 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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Gabriel Mendez v. Waren Montgomery Doc. 4 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 GABRIEL MENDEZ, 12 Petitioner, 13 14 15 16 17 18 v. WARREN MONTGOMERY, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) NO. CV 16-8261-ODW (AGR) OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION) On November 7, 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 continued imprisonment for a 1990 plea-bargained murder 21 conviction and sentence of 16 years to life. Because he previously challenged 22 the same underlying state-court judgment 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 indicates that Petitioner was convicted of murder, with a gun- 2 use enhancement, in 1990 when he entered a no-contest plea. He was 3 sentenced to prison for 16 years to life. (Petition at 2.) 4 On December 8, 2006, petitioner filed a Petition for Writ of Habeas Corpus 5 in this Court in case number CV 06-7810-GPS (AGR) (Mendez I). Petitioner 6 challenged the same 1990 state court judgment. On January 16, 2008, the Court 7 accepted the Magistrate Judge’s Report And Recommendation and denied the 8 habeas petition with prejudice as untimely. On October 6, 2008, the Court denied 9 a certificate of appealability. (Dkt. Nos. 37, 42, 43, 47 in Mendez I.) Petitioner 10 filed a Notice of Appeal, but the Ninth Circuit denied a certificate of appealability. 11 (Dkt. Nos. 46, 50 in Mendez I.) 12 On November 7, 2016, Petitioner filed the current Petition. Petitioner 13 challenges the same 1990 judgment, specifically asserting that his imprisonment 14 on the 16-years-to-life sentence violates the Eighth Amendment. 15 II. 16 DISCUSSION 17 The Petition was filed after enactment of the Antiterrorism and Effective 18 Death Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA 19 in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997). 20 The AEDPA provides, in pertinent part: “Before a second or successive 21 application permitted 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 district court 23 to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A district court does not 24 have jurisdiction to consider a “second or successive” petition absent 25 authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152 (2007); 26 Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (“When the AEDPA is in 27 play, the district court may not, in the absence of proper authorization from the 28 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 Mendez I. See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (“We hold 6 that the dismissal of a habeas petition as untimely constitutes a disposition on the 7 merits and that a further petition challenging the same conviction would be 8 ‘second or successive’ for purposes of 28 U.S.C. § 2244(b).”), followed by 9 Brandon v. Los Angeles County Sup. Ct., No. 15-2187-CAS, 2015 WL 1541567, 10 *3 (C.D. Cal. April 2, 2015) (same). 11 Rule 4 of the Rules Governing Section 2254 Cases in the United States 12 Courts provides that “[i]f it plainly appears from the face of the petition and any 13 attached exhibits that the petitioner is not entitled to relief in the district court, the 14 judge must dismiss the petition and direct the clerk to notify the petitioner.” Here, 15 summary dismissal is warranted. 16 III. 17 ORDER 18 19 IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. 20 21 22 DATED: _November 14, 2016 OTIS D. WRIGHT II United States District Judge 23 24 25 26 27 28 3
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