Opinion
NO. CV 18-7444-AG (AGR)
09-16-2018
GREGORY GALLARZO, Petitioner, v. J. ROBERTSON, Warden, Respondent.
OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS (SUCCESSIVE PETITION)
On August 24, 2018, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition"). Petitioner again challenges his 2009 conviction for murder and other crimes.
I.
PROCEDURAL BACKGROUND
Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records in Petitioner's prior federal habeas corpus action in the Central District.
On June 12, 2009, a Los Angeles County Superior Court jury found Petitioner guilty of two counts of second degree robbery, one count of assault with a firearm, two counts of possession of a firearm by a felon and one count of possession of ammunition. The jury found true the firearm enhancement on the robbery and assault counts. (Petition at 2.)
On September 19, 2012, Petitioner filed a Petition for Writ of Habeas Corpus that challenged the 2009 judgment. Gallarzo v. Uribe, CV No. 12-8082 AG (AGR) ("Gallarzo I"). On January 5, 2015, the Court accepted the Magistrate Judge's Report And Recommendation, denied the petition with prejudice, entered judgment and denied a certificate of appealability. (Gallarzo I, Dkt. Nos. 37-39.) On December 4, 2015, the Ninth Circuit denied a certificate of appealability. (Dkt. No. 45.) By letter dated November 18, 2016, the United States Supreme Court returned to Petitioner an untimely petition for writ of certiorari that was postmarked on October 26, 2016 and received on November 7, 2016. (Gallarzo II, Petition at 59.)
Page citations to the Petition in this case use the page numbers assigned by the CM/ECF system in the header. --------
On August 24, 2018, Petitioner filed the current Petition and challenges the same 2009 conviction and sentence. (Petition at 2.)
II.
DISCUSSION
The Petition was filed after enactment of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Therefore, the Court applies the AEDPA in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336 (1997).
The AEDPA provides, in pertinent part: "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). A district court does not have jurisdiction to consider a "second or successive" petition absent authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) ("When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.") (citation and quotation marks omitted).
Here, the Petition is a successive petition challenging the same conviction and sentence imposed by the same judgment of the state court as in Gallarzo I. A review of the Ninth Circuit's online database indicates that Petitioner has not received leave to file a second or successive petition from the Ninth Circuit.
Petitioner argues that his petition is not successive because some of the claims he now presents were previously dismissed as unexhausted. (Petition, Dkt. No. 1-1 at 129.) Petitioner is incorrect. The petition in Gallarzo I was denied and dismissed with prejudice. The Court noted that Petitioner's objections to the Report and Recommendation raised new subclaims under ineffective assistance of counsel and prosecutorial misconduct. The Court found that those new subclaims were without merit under Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005). (Gallarzo I, Dkt. No. 37 at 1.) The Ninth Circuit denied a certificate of appealability. (Dkt. No. 45.)
Rule 4 of the Rules Governing Section 2254 Cases in the United States Courts provides that "[i]f it plainly appears from the face of the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Summary dismissal is appropriate in this case without prejudice to Petitioner's ability to file an Application for Leave to File a Second or Successive Petition before the Ninth Circuit. The Clerk will be directed to send Petitioner a copy of Ninth Circuit Form 12 so that he can provide the necessary information to the Circuit for such an application.
III.
ORDER
IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition for lack of subject matter jurisdiction. This dismissal is without prejudice to Petitioner's ability to seek authorization from the Ninth Circuit Court of Appeals for leave to file a second or successive petition for writ of habeas corpus. The Clerk is directed to send Ninth Circuit Form 12 to the Petitioner. (See Ninth Circuit Rule 22-3.) All pending motions are denied as moot. DATED: September 16, 2018
/s/_________
ANDREW J. GUILFORD
United States District Judge