Opinion
23-cv-00030-WHO (PR)
05-25-2023
JOVENCIO DELA CALZADA, Petitioner, v. PATRICK COVELLO, Respondent.
ORDER OF DISMISSAL
WILLIAM H. ORRICK, United States District Judge.
INTRODUCTION
Petitioner Jovencio Dela Calzada has filed a habeas petition under 28 U.S.C. § 2254 in which he challenges the same state court judgment he challenged in a prior habeas action in this district, Dela Calzada v. Gipson, No. 14-cv-00103 WHO. The pending petition will be dismissed as second or successive to the prior petition.
BACKGROUND
The first habeas petition was denied on the merits. (Dela Calzada, No. 14-cv-00103, Dkt. No. 19.) Petitioner appealed, but the Ninth Circuit Court of Appeals denied his request for a certificate of appealability. (Id., Dkt. No. 33.)
The prior and current petitions are challenges to the 2011 California state convictions and sentence Dela Calzada received in the Contra Costa Superior Court for committing multiple sexual offenses against two of his stepdaughters, for which he received a sentence of 173 years to life in state prison. (Id., Order Denying Petition, Dkt. No. 19 at 1-2; Instant Petition, Dkt. No. 1 at 1-2; People v. Dela Calzada, No. A133098, 2012 WL 5279770 (Cal.Ct.App. Oct. 26, 2012) (unpublished).)
DISCUSSION
The pending petition is barred by the rule against filing a second or successive petition. As noted, Dela Calzada has filed at least one previous petition regarding the same state court judgment challenged in the pending petition. In order to file a second or successive petition, a petitioner must obtain an order from the Court of Appeals authorizing the district court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Without that authorization, a district court lacks jurisdiction over the petition. Burton v. Stewart, 549 U.S. 147, 153 (2007). Because Dela Calzada has not shown that he has received such authorization, the pending petition must be dismissed as second or successive, the filing of which has not been authorized by the Court of Appeals. Accordingly, the petition is DISMISSED.
CONCLUSION
The pending petition is DISMISSED as second or successive, the filing of which has not been authorized by the Court of Appeals.
A certificate of appealability will not issue. Petitioner has not shown “that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
The filing fee has been paid. (Dkt. No. 3.)
The Clerk shall enter judgment in favor of respondent, and close the file.
IT IS SO ORDERED.