Opinion
CASE NO. CV 19-8720-DMG (PJW)
11-13-2019
VINCENT ANTHONY CALLENDER, Petitioner, v. WARDEN OF CSATF, Respondent.
ORDER DISMISSING SECOND OR SUCCESSIVE HABEAS CORPUS PETITION AND DENYING CERTIFICATE OF APPEALABILITY
Before the Court is Petitioner's second attempt to challenge his April 2006 state conviction and subsequent sentence. The Court dismissed his first petition in 2014 as untimely. (Callender v. Knipp, CV 12-7481-DMG (PJW), January 30, 2014 Order.) Petitioner attempted to appeal the Court's ruling, but his application for a certificate of appealability was denied. (Callender v. Knipp, CCA No. 14-55343, September 26, 2014 Order.)
A petition that is dismissed for untimeliness "presents a 'permanent and incurable' bar to federal review of the underlying claims" and renders a subsequent petition second or successive. McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). Absent an order from the Ninth Circuit, Petitioner may not bring a habeas petition challenging his April 2006 conviction in this court. See 28 U.S.C. § 2244; see also Burton v. Stewart, 549 U.S. 147, 157 (2007) (holding district court lacks jurisdiction to consider the merits of a second or successive petition absent prior authorization from the circuit court).
Further, because Petitioner has not made a substantial showing of the denial of a constitutional right or that the court erred in its ruling, Petitioner is not entitled to a certificate of appealability. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED. DATED: November 13, 2019
/s/_________
DOLLY M. GEE
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE