Opinion
Case No. CV 16-8483-DDP(AJW)
12-07-2016
LUIS ECHEVERRIA, Petitioner, v. STATE OF CALIFORNIA, Respondent.
MEMORANDUM AND ORDER DISMISSING PETITION
In 2012, petitioner pleaded no contest to one count of corporal injury upon a spouse, cohabitant, or child's parent and one count of false imprisonment by violence. Pursuant to his plea agreement, petitioner was sentenced to state prison for a term of five years and four months. [Petition at 1].
Petitioner previously filed a petition for a writ of habeas corpus in this Court challenging his 2012 conviction. Case No. CV 15-3991-AJW. On April 11, 2016, judgment was entered denying the petition on the merits. This Court denied petitioner's application for a certificate of appealability. Petitioner filed an application for a certificate of appealability in the Court of Appeals. As of the date of this order, the application remains pending.
Petitioner filed the current petition for a writ of habeas corpus on November 15, 2016. The petition again challenges petitioner's 2012 conviction.
"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)(3)(A). Absent authorization from the Court of Appeals, this Court lacks jurisdiction over a successive petition. See Magwood v. Patterson, 561 U.S. 320, 330-331 (2010); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001), cert. denied, 538 U.S. 984 (2003).
To the extent that petitioner might contend that his petition meets an exception to the bar on successive petitions, his argument must be presented to the Court of Appeals. Because petitioner has not obtained leave from the Court of Appeals, this successive petition is dismissed for lack of jurisdiction.
Ninth Circuit Rule No. 22-3(a) provides that "[i]f a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals." Because the circumstances indicate that petitioner intentionally filed this action in this Court, not that he did so mistakenly, Rule 22-3(a) is inapplicable. Nevertheless, the Clerk is directed to mail petitioner a copy of Ninth Circuit Form 12 so that petitioner may file an application for leave to file a second or successive petition in the Court of Appeals. --------
It is so ordered. Dated: December 7, 2016
/s/_________
Dean D. Pregerson
United States District Judge