Opinion
Decided: June 22, 2015.
Bernard Rhodes, Petitioner, Pro se, Folsom, CA.
ORDER SUMMARILY DISMISSING PETITION FOR LACK OF JURISDICTION
VIRGINIA A. PHILLIPS, United States District Judge.
INTRODUCTION
On June 15, 2015, Petitioner Bernard Rhodes, a state prisoner at Folsom State Prison, filed a Petition for Writ of Habeas Corpus by a Person in State Custody. Dkt. 1 (" Petition"). For the reasons set forth below, the Petition is dismissed without prejudice for lack of jurisdiction.
PRIOR PROCEEDINGS
In 1981, Petitioner pleaded guilty to second-degree murder and was sentenced to 15 years to life in state prison. Petition at 2.
In 2011, Petitioner filed a federal habeas corpus petition in this Court in which he challenged the conviction and sentence imposed in 1981, arguing that he was not mentally competent to plead guilty and that the trial judge, prosecutor, and his defense counsel all committed misconduct by allowing Petitioner to plead guilty. See Rhodes v. Hill, Case No. 11-09059, Dkt. 16 at 1-2, *5-6 (C.D. Cal. July 23, 2012) (" the Prior Action"). Because this habeas petition was untimely under the one-year limitations period imposed by 28 U.S.C. § 2244(d)(1), this Court entered judgment in 2012 denying the habeas petition in the Prior Action and dismissing the action with prejudice. See id., Dkt. 21 (C.D. Cal. Sept. 19, 2012).
DISCUSSION
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.
28 U.S.C. § 2244 (b)(1)-(3); see also Rule 9(b) of the Rules Governing § 2254 Cases in the United States District Courts. In addition, Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts provides that if it plainly appears from the face of the petition and any exhibits thereto that the petition is not entitled to relief in the district court, the Court shall make an order for its summary dismissal.
It is clear from the face of the Petition that it attacks the same Los Angeles County Superior Court conviction and sentence as challenged in the prior habeas petition filed in this Court. Thus, to the extent that Petitioner is alleging any of the same claims as he alleged in the Prior Action, § 2244(b)(1) requires the dismissal of those claims. To the extent that Petitioner may be alleging new claims, 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 in this Court. Petitioner's failure to do so deprives the Court of subject matter jurisdiction to consider the Petition. See Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001).
Accordingly, the Court will dismiss the Petition without prejudice to the filing of a new action if and when Petitioner obtains permission to file a successive petition. (If Petitioner obtains permission to file a successive petition, he should file a new petition for writ of habeas corpus. He should not file an amended petition in this action nor should he use the case number from this action because the instant action will be closed today. If and when Petitioner files a new petition, the Clerk will give the petition a new case number.)
ORDER
Based on the foregoing, IT IS THEREFORE ORDERED that judgment be entered summarily dismissing the Petition without prejudice for lack of jurisdiction.
JUDGMENT
Pursuant to the Order Summarily Dismissing Petition for Lack of Jurisdiction, IT IS ADJUDGED that that the petition is summarily dismissed.