Opinion
CASE NO. CV 17-9013-PSG (PJW)
12-19-2017
RODERICK HIMES, Petitioner, v. J. GASTELO, WARDEN, 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 2003 state conviction and resultant sentence. His first petition was denied on the merits in May 2010. (Himes v. Clark, CV 07-2729-PSG (PJW), May 25, 2010 Order.) The Ninth Circuit Court of Appeals then denied his application for a certificate of appealability. (CCA No. 10-56145, August 9, 2011 Order.)
Absent authorization from the Ninth Circuit, Petitioner may not bring another habeas petition challenging his 2003 conviction and sentence. 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 authoriza- tion from the circuit court). For this reason, the Petition is dismissed.
The Court further 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: 12/19/17
/s/_________
PHILIP S. GUTIERREZ
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE