Opinion
CASE NO. CV 16-251-SVW (PJW)
08-24-2016
MICHAEL DAVID HEMINGWAY, Petitioner, v. CALIFORNIA, Respondent.
ORDER VACATING ORDER REQUIRING RESPONSE AND DISMISSING SECOND AND SUCCESSIVE HABEAS CORPUS PETITION
In January 2016, Petitioner filed the instant habeas corpus petition, seeking to challenge a 2002 state conviction. Respondent now moves to dismiss the petition on the ground that it is second and/or successive. For the following reasons, the motion is granted.
In 2004, Petitioner filed a habeas corpus petition in this court, challenging his 2002 conviction. The Court denied the petition on the merits. (Hemingway v. Warden, CV 04-10030-SVW (VBK), July 31, 2009 Order.) Petitioner appealed, but the Ninth Circuit Court of Appeals denied his request for a certificate of appealability. (Hemingway v. Warden, No. 09-56546, May 13, 2011 Order.)
Because this is Petitioner's second attempt to challenge the same conviction, it is second and/or successive. As such, he may not proceed in this court unless and until he obtains authorization from the Ninth Circuit Court of Appeals. See 28 U.S.C. § 2244; Burton v. Stewart, 549 U.S. 147, 152-53 (2007). Absent an order from the Ninth Circuit, this court does not have jurisdiction to entertain a second or successive petition. See 28 U.S.C. § 2244(b)(3)(A). For this reason, the petition is dismissed.
Petitioner's motion for appointment of counsel (Doc. No. 2) is denied as moot. --------
Further, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right or that the court erred in its procedural ruling and, therefore, a certificate of appealability will not issue in this action. 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: August 24, 2016
/s/_________
STEPHEN V. WILSON
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE