VALERIE BAKER FAIRBANK Senior United States District Judge

OPINION and ORDER

Referring the Petition to the U.S. Court of Appeals per Ninth Circuit Rule 22-3(a); Dismissing Habeas Petition without Prejudice for Lack of Subject-Matter Jurisdiction; Denying a Certificate of Appealability

This is a pro se state prisoner's action for habeas corpus relief pursuant to 28 U.S.C. section 2254. The instant petition attacks the conviction which petitioner sustained in San Bernardino Superior Court Case No. FSB 16842 in 1999. The Court takes judicial notice of its files with respect to a prior habeas petition ("the prior petition") which petitioner constructively filed in this Court on or about October 27, 2011, Case No. ED CV 11-01750-VBF-FFM. The Court finds that the prior petition was directed to the same San Bernardino Superior Court Case No. FSB16842 as the instant petition. On January 17, 2012, the undersigned entered final judgment and an order denying the prior petition as time-barred and dismissing the action with prejudice. For the reasons that follow, the Court will dismiss the petition without prejudice for lack of subject-matter jurisdiction and deny a certificate of appealability ("COA"). In compliance with Ninth Circuit Rule, the Court will also refer the petition to the Circuit for consideration as an application for leave to file a second federal habeas petition challenging the same conviction.

This action is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. 104-132, 110 Stat. 1214) ("AEDPA") which became effective April 24, 1996. Title 28 U.S.C. § 2244(b) reads in pertinent part as follows:

(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.

(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application 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.

(3) (A) Before 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.

"Although AEDPA does not define the terms 'second or successive,' the Supreme Court and the Ninth Circuit . . . have 'interpreted the concept incorporated in this term of art as derivative of the abuse of the writ doctrine developed in pre-AEDPA cases.'" Jointer v. Gonzales, 2014 WL 935293, *2 (C.D. Cal. Mar. 10, 2014) (quoting Allen v. Ornoski, 435 F.3d 946, 956 (9th Cir. 2006)). Accordingly, a habeas petition is second or successive if it raises claims that were raised, or that could have been adjudicated on the merits, in a previously filed federal habeas petition. See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).

"Petitioner's prior petition was denied on the ground that it was barred by the one-year period of limitation, and such a dismissal is considered an adjudication on the merits for purposes of determining whether a subsequent petition is successive." Kenjuan Adams v. Hedgpeth, No. LA CV 14-01464-VBF Doc. 5 at 3-4 (C.D. Cal. Apr. 9, 2014) (citing, inter alia, Plaut v. Spendthrift Farm, 514 U.S. 211, 228, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995) ("The rules of finality, both statutory and judge made, treat a dismissal on statute-of-limitations grounds the same way they treat a dismissal for failure to state a claim, for failure to prove substantive liability, or for failure to prosecute: as a judgment on the merits.") (citing Fed. R. Civ. P. 41(b) and US v. Oppenheimer, 242 U.S. 85, 87-88, 37 S. Ct. 68, 61 L. Ed. 161 (1916)); see also McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009); Ellingson v. Burlington Northern Inc., 653 F.2d 1327, 1330 n.3 (9th Cir. 1981) ("A judgment based on the statute of limitations is 'on the merits.'") (citation omitted); see, e.g., Nelson v. Brown, 2014 WL 1096189, *6 (S.D. Cal. Mar. 19, 2014) ("[A] prior habeas petition dismissed . . . for failure to comply with the statute of limitations constitutes a disposition on the merits.") (citations omitted).

Therefore, because the pending petition challenges the same conviction as petitioner's prior petition in C.D. Cal. Case No. ED CV 11-01750-VBF-FFM, it constitutes a second-or-successive petition within the meaning of 28 U.S.C. § 2244(b). To the extent that petitioner asserts the same claims he previously asserted, those claims are barred by § 2244(b)(1) and must be dismissed. See, e.g., Timmons v. Spearman E., 2014 WL 1340224, *2 (C.D. Cal. Apr. 3, 2014) ("[T]o the extent that Petitioner is now purporting to raise claims previously raised in [prior federal habeas petition], § 2241(b)(1) compels dismissal of those claims."); Myers v. Curry, 2008 WL 4195934, *2 (C.D. Cal. Sept. 2, 2008) (same).

To the extent that he asserts claims not asserted in the prior federal habeas petition, it was incumbent on him under § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing this Court to consider the petition, before filing the petition here. "Petitioner's failure to secure such an order deprives the Court of subject-matter jurisdiction and requires dismissal of this action." Adams, No. LA CV 14-01464-VBF Doc. 5 at 4 (citing Burton v. Stewart, 549 U.S. 147, 57 (2007)).

"'A jurisdictional dismissal is not a judgment on the merits.'" Everist v. USDA, 2012 WL 2367393, *4 (D. Or. June 7, 2012) (quoting Wages v. IRS, 915 F.2d 1230, 1234 (9th Cir. 1990)), R&R adopted, 2012 WL 2367399 (D. Or. June 21, 2012). Because the Court lacks subject-matter jurisdiction, the dismissal must be without prejudice. See Bender v. McGrew, 2014 WL 1152952, *4 (C.D. Cal. Mar. 21, 2014) (Selna, J.) ("'A court that lacks subject matter jurisdiction cannot dismiss a case with prejudice.'") (quoting Murray v. Conseco, Inc., 467 F.3d 602, 605 (7th Cir. 2006)); Mitrano v. Milusnic, 2013 WL 2013 WL 6850031, *7 (C.D. Cal. Dec. 27, 2013) (Bernal, J.) ("Where a court lacks subject-matter jurisdiction, it also lacks the power to dismiss with prejudice.") (citing Murray and Hernandez v. Conriv Realty Assocs., 182 F.3d 121, 123 (2d Cir. 1999) ("Conriv Realty")). Accord Erickson v. US Post Office, 250 F. App'x 757, 758 (8th Cir. 2007) ("We modify the dismissal to be without prejudice . . . [because] Article III deprives federal courts of power to dismiss [a] case with prejudice where subject matter jurisdiction does not exist), . . . .") (internally citing Conriv Realty).

"REFERRAL" OF HABEAS CORPUS PETITION PER NINTH CIRCUIT RULE 22-3(a)

Ninth Circuit Rule 22-3(a) states, in pertinent part, that "[i]f a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals." Emphasis added. "The Supreme Court adheres to the venerable principle of construction that the word 'shall' indicates that the action is mandatory, not optional or discretionary." Adams, No. LA CV 14-01464-VBF Doc. 5 at 5 (citing, inter alia, Sebelius v. Auburn Regional Med. Ctr., - U.S. -, 133 S. Ct. 817, 824 (2013) (referringto "the mandatory word 'shall'")); see also Gonzales v. Thaler, - U.S. -, 132 S. Ct. 641 (2012) (the word "shall" in 28 U.S.C. § 2253(c)(3) underscores the mandatory nature of that provision); Nat'l Ass'n of Homebuilders v. Defenders of Wildlife, 544 U.S. 644, 661, 127 S. Ct. 2518 (2007) ("Section 402(a) of the CWA provides, without qualification, that the EPA 'shall approve' a transfer application unless it determines that . . . . By its terms, the statutory language is mandatory . . . ."); Lopez v. Davis, 531 U.S. 230, 241, 121 S. Ct. 714 (2001).

The Ninth Circuit likewise holds that "use of the words 'any' and 'shall' indicate that [a provision] is not permissive," In re HP Inkjet Printer Litig., 716 F.3d 1173, 1181 (9th Cir. 2013) (citing, inter alia, Alabama v. Bozeman, 533 U.S. 146, 153, 121 S. Ct. 2079 (2001) ("The word 'shall' ordinarily is the language of command.") (quoting Escoe v. Zerbst, 295 U.S. 490, 493, 55 S. Ct. 818 (1935))); US v. Carter, 742 F.3d 440, 446 (9th Cir. 2014) ("[B]y using the words 'shall order' in a forfeiture statute, 'Congress could not have chosen stronger words to express its intent that forfeiture be mandatory'") (quoting US v. Monsanto, 491 U.S. 600, 607, 109 S. Ct. 2657 (1989)); US v. Chavez, 627 F.2d 953, 954-55 (9th Cir. 1980). See, e.g., William v. Bd. of Prison Terms, 2006 WL 463128, *3 (E.D. Cal. Feb. 24, 2006) ("What the Court found significant in the . . . statutes, was mandatory language: the use of the word 'shall' . . . .") (citing Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 11-12, 99 S.Ct. 2100 (1979) and Bd. of Pardons v. Allen, 482 U.S. 369, 377-78 (1987)), R&R adopted, 2006 WL 845594 (E.D. Cal. Mar. 30, 2006).

Therefore, when confronted with a successive habeas petition attacking the same conviction or sentence as a prior federal petition where the petitioner has not obtained leave to file from the Circuit, a district court here has no choice but to "refer" the petition to the U.S. Court of Appeals. Failure to do so would violate the plain and mandatory language of Ninth Circuit Rule 22-3(a).

The question then arises whether the Court can both "refer" this petition to the Ninth Circuit and then dismiss the action here without prejudice for lack of subject-matter jurisdiction. Like many other district judges in our circuit, the Court concludes that this is the appropriate course of action. "The lack of subject-matter jurisdiction requires the Court to dismiss this action, and Ninth Circuit Rule 22-3(a) plainly requires the Court to 'refer' the petition to the Circuit, so the Court will do both." Edwards v. Koehn, No. ED CV 14-00390 Doc. 5 (C.D. Cal. Apr. 11, 2014) (citing, inter alia, Castaneda v. Long, 2014 WL 996490, *1 (C.D. Cal. Mar. 13, 2014) ("[T]his action is dismissed without prejudice for lack of jurisdiction because Petitioner did not obtain the requisite authorization from the Court of Appeals to file a successive petition. Further, the Clerk of Court is directed to refer the Current Federal Petition to the . . . Ninth Circuit . . . pursuant to Ninth Circuit Rule 22-3(a).")); see also Blanco v. Valenzuela, 2014 WL 111453 (C.D. Cal. Jan. 9, 2014) (Walter, J.) (same); Parham v. Diaz, 2013 WL 5310760, *1 (C.D. Cal. Sept. 19, 2013) (Klausner, J.); Reed v. Roe, 2013 WL 1970240, *1 (C.D. Cal. May 10, 2013) (Wright, J.); Jones v. Harris, 2013 WL 1390036, *1 (C.D. Cal. Mar. 15, 2013) (Wilson, J.); Burts v. Yates, 2012 WL 3019950, *1 (C.D. Cal. July 23, 2012) (Pregerson, J.); Jones v. Harrington, 2012 WL 2573207, *1 (C.D. Cal. June 29, 2012) (Gee, J.).

CERTIFICATE OF APPEALABILITY

Absent a COA, "an appeal may not be taken from a final decision of a district judge in a habeas corpus proceeding or a proceeding under 28 U.S.C. § 2255", Chafin v. Chafin, - U.S.-, 133 S. Ct. 1017, - (2013) (Ginsburg, J., joined by Scalia & Breyer, JJ., concurring), or from a district judge's final order in a § 2254 proceeding, and "'[t]he district court must issue or deny a [COA] when it enters a final order adverse to the applicant'", Cleveland v. Babeu, 2013 WL 2417966, *3 (C.D. Cal. May 29, 2013) (Fairbank, J.) (quoting Rule 11(a) of Rules Governing § 2254 Cases). The court must consider each claim separately, Mayfield v. Woodford, 270 F.3d 915, 922 (9th Cir. 2001) (citation omitted)), which means the court may grant a COA on one claim and not on others. See, e.g., Brown v. Clark, 2011 WL 2259130, *1 (C.D. Cal. June 6, 2011) (granting COA on Confrontation Clause claim but not other claims), aff'd, 477 F. App'x 430 (9th Cir. 2012).

In practice,"[i]t is a 'rare step' for a district court to issue a COA," McDaniels v. McGrew, 2013 WL 4040058, *3 (C.D. Cal. Aug. 8, 2013) (Fairbank, J.) (quoting Murden v. Artuz, 497 F.3d 178, 199 (2d Cir. 2007) (Hall, J., concurring in judgment)). A COA may issue only if "the prisoner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court is mindful that it "must resolve doubts about the propriety of a COA in the petitioner's favor", Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (en banc), but no such doubt exists here. Reasonable jurists would not find it debateable that the petition must be dismissed without prejudice for lack of subject-matter jurisdiction because petitioner has not alleged that he obtained leave from the Ninth Circuit to file a second-or-successive habeas petition. Nor would reasonable jurists find it debateable that Ninth Circuit Rule 22-3(a) requires this Court to refer the petition to the U.S. Court of Appeals, leaving the Court no discretion or authority to do otherwise. In the posture of this case, the petition is not "adequate to deserve encouragement to proceed further." Barefoot v. Estelle, 463 U.S. 880, 893 n.4, 103 S. Ct. 3383, 3385 n.4 (1983).

ORDER

Pursuant to Ninth Circuit Rule 22-3(a), the Court REFERS the habeas petition to the U.S. Court of Appeals for the Ninth Circuit for consideration as an application for leave to file a second-or-successive habeas petition. The Clerk of Court SHALL SEND a copy of the habeas petition and a copy of this Order to the Clerk of the U.S. Court of Appeals for the Ninth Circuit.

The Clerk of Court SHALL PROVIDE "petitioner with a form recommended by the Ninth Circuit for filing an Application for Leave to File Second or Successive Petition Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255."

This action is then DISMISSED without prejudice for lack of subject-matter jurisdiction.

A Certificate of Appealability is DENIED. This is a final order, but it will not be appealable unless petitioner obtains a certificate of appealability from the U.S. Court of Appeals.

As required by FED. R. CIV. P. 58(a)(1), final judgment will be issued separately. DATED: April 23, 2014

/s/_________

VALERIE BAKER FAIRBANK

Senior United States District Judge