Opinion
MEMORANDUM AND ORDER RE: DISMISSAL OF PETITION FOR WRIT OF HABEAS CORPUS (28 U.S.C. § 2254) AS SUCCESSIVE
GARY A. FEESS, District Judge.
I.
INTRODUCTION
On July 9, 2011, Kenneth Lee Berry ("Petitioner") constructively filed a Petition for Writ of Habeas Corpus by a Person in State custody pursuant to 28 U.S.C. § 2254 ("Petition") in the United States District Court for the Eastern District of California. (ECF No. 1.) On August 23, 2011, an order was signed transferring the matter to the Central District of California. (ECF No. 5.) On August 30, 2011, the transfer order was received in this District. (ECF No. 6.)
The prison mailbox rule holds that a habeas petitioner's state and federal filings are constructively filed when turned over to prison officials for forwarding to the Clerk of the Court. See, e.g., Smith v. Duncan , 297 F.3d 809, 814 (9th Cir. 2002); Huizar v. Carey , 273 F.3d 1220, 1223 (9th Cir. 2001). The Court has used the signature date on the Petition as the constructive filing date since the signature date is the earliest date on which Petitioner could have turned the Petition over to the prison authorities for mailing.
II.
PROCEDURAL HISTORY
On March 31, 1998, Petitioner was convicted after a jury trial in the Los Angeles County Superior Court, case number PA027446, of assault by means likely to produce great bodily injury and unlawful taking of a motor vehicle. The jury also found true certain allegations relating to prior strike convictions and prison terms. Petitioner was sentenced to a total state prison term of fifty-five years to life. (Pet. at 2.)
Petitioner appealed to the California Court of Appeal, case number B122476. On August 5, 1999, the court of appeal affirmed the judgment. (Pet. at 3; Official Records of California Courts.)
The Court takes judicial notice of the state appellate court records for Petitioner's case, which are available on the Internet at http://appellatecases. courtinfo.ca.gov. See Smith , 297 F.3d at 815 (federal courts may take judicial notice of relevant state court records in federal habeas proceedings).
Petitioner filed a petition for review in the California Supreme Court, case number S081990. On October 20, 1999, the supreme court denied the petition. (Official Records of California Courts.)
On May 16, 2000, Petitioner filed a habeas corpus petition in the California Court of Appeal, case number B141299. On May 23, 2000, the court of appeal denied the petition. (Official Records of California Courts.)
On June 27, 2000, Petitioner filed a habeas corpus petition in the California Supreme Court, case number S089452. On September 27, 2000, the supreme court denied the petition. (Official Records of California Courts.)
On October 26, 2000, Petitioner filed a habeas corpus petition in this District, case number CV-00-11350-GAF (Mc), challenging the same conviction that is the subject of the current Petition. On October 18, 2001, Judgment was entered denying the petition and dismissing the action with prejudice. (Case No. 00-1350 ECF Nos. 1, 24.) Petitioner's requests for the issuance of a certificate of appealability were denied. (Id. ECF Nos. 26, 32.)
On November 13, 2000, Petitioner filed a second habeas corpus petition in the California Court of Appeal, case number B145651. On December 6, 2000, the court of appeal denied the petition. (Official Records of California Courts.)
On January 25, 2001, Petitioner filed a second habeas corpus petition in the California Supreme Court, case number S094739. On May 23, 2001, the supreme court denied the petition. (Official Records of California Courts.)
On December 20, 2006, Petitioner filed a habeas corpus petition in the Los Angeles County Superior Court, case number PA027466. On September 23, 2008, the superior court denied the petition after holding an evidentiary hearing. (Pet. Unnumbered Exs.)
On December 4, 2008, Petitioner filed a third habeas corpus petition in the California Court of Appeal, case number B212482. On December 16, 2008, the court of appeal denied the petition. (Official Records of California Courts.)
On February 9, 2009, Petitioner filed a fourth habeas corpus petition in the California Court of Appeal, case number B213938. On March 4, 2009, the court of appeal denied the petition. (Official Records of California Courts.)
On March 11, 2009, Petitioner filed a third habeas corpus petition in the California Supreme Court, case number S171170. On November 19, 2009, the supreme court denied the petition. (Official Records of California Courts.)
On September 1, 2009, Petitioner filed a fifth habeas corpus petition in the California Court of Appeal, case number B218584. On September 17, 2009, the court of appeal denied the petition. (Official Records of California Courts.)
On May 21, 2010, Petitioner filed a fourth habeas corpus petition in the California Supreme Court, case number S182887. On January 12, 2011, the supreme court denied the petition. (Official Records of California Courts.)
III.
DISCUSSION
A. Standard of Review.
The current Petition was filed after the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") was signed into law. "A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed." 28 U.S.C. § 2244(b)(1) (as amended by the AEDPA); see also Tyler v. Cain , 533 U.S. 656, 661, 121 S.Ct. 2478, 150 L.Ed.2d 632 (2001) (if prisoner asserts a claim he or she presented in a previous habeas petition, section 2244(b)(1) requires that the claim be dismissed in all cases). A second habeas petition which raises new claims not presented in the prior habeas petition shall be dismissed unless "(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense." 28 U.S.C. § 2244(b)(2) (as amended). However, "[b]efore a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A).
The requirement that a new rule be "made retroactive" is satisfied "only if [the Supreme] Court has held that the new rule is retroactively applicable to cases on collateral review." Tyler , 533 U.S. at 661-65 (because Supreme Court has never held expressly that rule of Cage v. Louisiana , 498 U.S. 39, 111 S.Ct. 328, 112 L.Ed.2d 339 (1990) (per curiam), must be applied retroactively on collateral review under Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), requirements of exception contained in section 2244(b)(2) were not met).
A dismissal of a § 2254 petition for failure to comply with the one-year statute of limitations constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction "second or successive" petitions under § 2244(b). Murray v. Greiner , 394 F.3d 78, 81 (2nd Cir. 2005); Altman v. Benik , 337 F.3d 764, 766 (7th Cir. 2003); see also In re Marino , 181 F.3d 1142, 1144 (9th Cir.1999) (explaining that "for res judicata purposes a dismissal on statute of limitations grounds can be treated as a dismissal on the merits.")
B. The Petition is Subject to Dismissal Because it is Second and Successive.
It appears from the face of the Petition that Petitioner seeks to challenge his conviction in the Los Angeles County Superior Court, case number PA027446, for assault by means likely to produce great bodily injury and unlawful taking of a motor vehicle for which Petitioner was sentenced to a total state prison term of fifty-five years to life. (Pet. at 2.) This is the same conviction Petitioner challenged in his previous § 2254 petition filed in this District, case number CV-00-11350-GAF (Mc). On October 18, 2001, Judgment was entered denying the petition and dismissing the action with prejudice. (Case No. 00-1350 ECF Nos. 1, 24.) Petitioner's requests for the issuance of a certificate of appealability were also denied. (Id. ECF Nos. 26, 32.)
Although not completely clear, it appears that the claims raised in the current Petition relate to the alleged fabricated testimony presented at his trial. Petitioner raised these claims in habeas petition filed in December 2006, for which the superior court granted an evidentiary hearing in March 2008. However, on September 23, 2008, the superior court denied the habeas petition. (Pet. Unnumbered Exs.) These claims are different from those raised in the prior § 2254 petition. Nevertheless, Petitioner has not established that the new claims rely on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable. He has also failed to establish that the factual predicate for the new claims could not have been discovered previously through the exercise of due diligence and that the facts underlying the claims if proven would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found him guilty of the underlying offenses. 28 U.S.C. § 2244(b)(2). As a result, he was required pursuant to 28 U.S.C. § 2244(b)(3) (A) to secure an order from the Ninth Circuit authorizing the District Court to consider the current Petition prior to filing it in this Court. There is no evidence that Petitioner has done so. Thus, the current Petition is subject to dismissal for lack of subject matter jurisdiction. See Cooper v. Calderon , 274 F.3d 1270, 1274 (9th Cir. 2001) ("The district court correctly recognized that Cooper's petition was second or successive' under Section 2244(b). Once it did so, however, it lacked jurisdiction to consider the merits of his petition.")
Based on the foregoing, the Court finds that the current Petition must be dismissed without prejudice to Petitioner's right to seek the necessary authorization from the Ninth Circuit to file a "second or successive" petition.
IV.
ORDER
IT IS THEREFORE ORDERED that the Petition is hereby dismissed without prejudice as successive, and Judgment shall be entered accordingly.