Opinion
Eric D. Rice, Petitioner, Pro se, Soledad, CA.
PHILIP S. GUTIERREZ, United States District Judge. DOUGLAS F. McCORMICK, United States Magistrate Judge.
ORDER SUMMARILY DISMISSING PETITION FOR LACK OF JURISDICTION
PHILIP S. GUTIERREZ, United States District Judge.
INTRODUCTION
On February 24, 2015, Petitioner Eric D. Rice, a state prisoner at Salinas Valley State Prison, filed a Petition for Writ of Habeas Corpus by a Person in State Custody. Dkt. 1 (" Petition"). Although the Petition was originally filed in the United States District Court for the Eastern District of California, that court transferred the action to this Court because the Petition seeks to challenge a state-court conviction and sentence from the Los Angeles County Superior Court. Id. at 4; see Dkt. 12 (order transferring case). For the reasons set forth below, the Petition is dismissed without prejudice for lack of jurisdiction.
PRIOR PROCEEDINGS
On March 19, 1999, a jury convicted Petitioner in Los Angeles County County Superior Court of second-degree robbery. Rice v. Pliler, Case No. 02-0848, 2005 WL 1367191, at *2 (E.D. Cal. June 2, 2005). The trial court found allegations of several prior convictions to be true, giving Petitioner three strikes under California sentencing law. Id. Accordingly, on April 19, 1999, the trial court sentenced Petitioner to 35 years to life. Id.
In 2002, Petitioner filed a federal habeas corpus petition in the United States District Court for the Eastern District of California in which he challenged this conviction and sentence, claiming that his constitutional rights were violated by a jury instruction requiring jurors to report holdouts to the court; his sentence violates the Eighth Amendment; and his constitutional rights were violated because he was incompetent at the time of his trial. Id. at *1. On August 16, 2005, the court entered judgment denying the habeas petition on the merits of Petitioner's claims and dismissing the action with prejudice. See Rice v. Pliler, Case No. 02-0848, Dkt. 27 (E.D. Cal. Aug. 16, 2005).
It is unclear why this prior habeas petition was not transferred to this Court. Respondent in that action applied for an order transferring the action; the Magistrate Judge in the Eastern District denied the application without prejudice. The issue never recurred and the Court ruled on Petitioner's habeas application on the merits.
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 in the Eastern District of California. 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.