Opinion
Case No. 05 CV 2358 WQH (RBB).
February 16, 2006
ORDER
I. Background
On December 19, 2005, Petitioner filed a Petition with the Court titled "Petition for a Writ of Habeas Corpus, `under the Original Jurisdiction;' 28 U.S.C.S. § 2241 (a), (b), (c), (d); Article I. § 9, clause 2 of the U.S.A. Constitution" [Doc. No. 1]. A review of the pleading indicates that Petitioner attempts to challenge his 1997 state court conviction and sentence. However, as indicated by the Petitioner in the pleading, he has already challenged his 1997 state court conviction and sentence when he filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 with the Court on February 25, 2002. On September 17, 2003, after consideration of a forty-seven (47) page Report and Recommendation by Magistrate Judge Porter, the Honorable Jeffrey T. Miller denied the § 2254 petition on the merits. See 02-CV-0350 JM (POR) Doc. No. 89. In his current Petition, Petitioner acknowledges that the previous ruling by Judge Miller was affirmed by the Ninth Circuit Court of Appeals, and denied review by the United States Supreme Court. See Aceves v. Knowles, 543 U.S. 881 (2004).: Petitioner sought authorization from the Ninth Circuit Court of Appeals to file a second or successive 28 U.S.C. § 2254 petition, to raise a claim of prosecutorial misconduct. On December 14, 2004, the Ninth Circuit denied Petitioner permission to file a second 28 U.S.C. § 2254 petition. See No. 04-75538.
II. Discussion
Petitioner claims the Court has "Original Jurisdiction" pursuant to 28 U.S.C. § 2241 and further claims he "has no other remedies under the law in which to seek review of the present issues." See Petition at 3-4. Section 2241 provides in pertinent part:
(c) The writ of habeas corpus shall not extend to a prisoner unless —
(1) He is in custody under or by color of the authority of the United States or is committed for trial before some court thereof; or
(2) He is in custody for an act done or omitted in pursuance of an Act of Congress, or an order, process, judgment or decree of a court or judge of the United States; or
(3) He is in custody in violation of the Constitution or laws or treaties of the United States; or
(4) He, being a citizen of a foreign state and domiciled therein is in custody for an act done or omitted under any alleged right, title, authority, privilege, protection, or exemption claimed under the commission, order or sanction of any foreign state, or under color thereof, the validity and effect of which depend upon the law of nations; or
(5) It is necessary to bring him into court to testify or for trial.28 U.S.C. § 2241(c) (West 2005).
In his pleading, Petitioner states he "is a state prisoner under the custody of the California Department of Corrections, under the legal custody of Mule Creek State Prison's Warden, Rosanne Campbell, at Ione, California, pursuant to a judgment of conviction rendered by the Superior Court of California, in and for the San Diego County." See Petition at 1. As a California state prisoner attacking the validity of a state court conviction and sentence, Petitioner does not meet the requirements of § 2241. White v. Lambert, 370 F.3d 1002, 1006-07 (9th Cir. 2004).
Petitioner cannot avoid the limitations imposed on successive petitions by styling his petition as one pursuant to § 2241. Greenawalt v. Stewart, 105 F.3d 1287 (9th Cir. 1997). The authority of the federal courts to grant habeas relief to state prisoners is limited by 28 U.S.C. § 2254. Id.; White, 370 F.3d at 1006-07. Therefore, Petitioner may not proceed under § 2241. To the extent that Petitioner attempts to challenge his state court conviction, the Court holds that a § 2254 petition may be the appropriate means for doing so. However, the record indicates that Petitioner already filed one § 2254 petition and sought authorization from the Ninth Circuit to file a second or successive § 2254 petition.
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244 acts as a gate-keeping provision and imposes stringent restrictions on the filing of second or successive petitions. See Felker v. Turpin, 518 U.S. 651, 662-64 (1996). District courts cannot consider a second or successive petition until the appropriate court of appeals issues an order authorizing the district court to consider the application. See 28 U.S.C.A. § 2224(b)(3)(A) (West Supp. 2005). 28 U.S.C.A. § 2244(b)(1) provides that a claim presented in a second habeas petition under section 2254 that was presented in a prior petition shall be dismissed. See Reyes v. Vaughn, 276 F. Supp.2d 1027, 1028-29 (C.D. Cal. 2003). A claim presented in a second habeas corpus application under § 2254 that was not presented in a prior application must be dismissed unless: (1) the claim (a) relies on a new rule of constitutional law, (b) was held to be retroactive to cases on collateral review by the Supreme Court, and (c) was previously unavailable; or (2) (I) the factual basis for the claim could not have been discovered previously through the exercise of due diligence, and (ii) the petitioner is actually innocent. 28 U.S.C.A. § 2244(b)(2)(A)-(B) (West Supp. 2005); Tyler v. Cain, 533 U.S. 656, 662 (2001). The dismissal of a subsequent § 2254 motion pursuant to § 2244 does not render federal habeas relief an ineffective or inadequate remedy. Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999).
Therefore, Petitioner must obtain leave from the Ninth Circuit Court of Appeals before filing a successive habeas petition pursuant to 28 U.S.C. § 2254 in this Court, as required by 28 U.S.C. § 2244(b)(3)(A). III. Conclusion and Order
Petitioner's pleading indicates he attempts to file a § 2241 petition. However, Petitioner does not meet the requirements of § 2241 as he is incarcerated and challenging a state court conviction. Furthermore, Petitioner already filed one § 2254 petition, and has sought authorization to file a second or subsequent § 2254 petition from the Ninth Circuit Court of Appeals. See No. 04-75538. The dismissal of a subsequent § 2254 petition does not render federal habeas relief an ineffective or inadequate remedy. Petitioner must obtain leave from the Ninth Circuit before he can file a subsequent § 2254 petition.
Accordingly, the Court DISMISSES the petition brought pursuant to 28 U.S.C. § 2241 [Doc. No. 1] without prejudice.
IT IS SO ORDERED.