Opinion
Case No. CV 15-5886-VAP(AJW)
08-10-2015
CLAUDELL GREEN, SR., Petitioner, v. S. PERRY, Warden, Respondent.
MEMORANDUM AND ORDER DISMISSING PETITION
This habeas corpus petition challenges petitioner's 1995 conviction of bank robbery and the resulting sentence. [Petition at 2, 5, and attached pages].
Petitioner previously has filed three habeas corpus petitions in this Court challenging his 1995 conviction and sentence. The first two petitions were denied on the merits, and the Ninth Circuit denied petitioner's requests for a certificate of appealability. [Case Nos. CV 04-4705-GPS(AJW) and CV 07-7182-VAP(AJW)]. The third petition was dismissed as successive. [Case No. CV 10-5603-VAP(AJW)].
A federal court must dismiss a successive petition that raises the same grounds for relief as a prior petition. 28 U.S.C. § 2244(b)(1). A federal court must also dismiss a successive petition raising a new ground for relief unless the petitioner can show that (1) the claim rests on a new, retroactive, constitutional right or (2) the factual basis of the claim was not previously discoverable through due diligence, and those new facts establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B). It is not the district court, however, that decides whether a successive petition may proceed. Rather, "[b]efore 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. Burton v. Stewart, 549 U.S. 147, 152-153, 157 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001), cert. denied, 538 U.S. 984 (2003).
Because petitioner has not obtained leave from the Court of Appeals to file a successive petition, the petition for a writ of habeas corpus is dismissed for lack of jurisdiction.
It is so ordered. Dated: August 10, 2015
/s/_________
Virginia A. Phillips
United States District Judge
JUDGMENT
It is hereby adjudged that the petition for a writ of habeas corpus is dismissed for lack of jurisdiction.
/s/_________
Virginia A. Phillips
United States District Judge