Opinion
Case No. 21-00052 BLF (PR)
04-28-2021
IN RE VANCE E. JOHNSON, Petitioner.
ORDER OF DISMISSAL; DENYING CERTIFICATE OF APPEALABILITY; DENYING PENDING MOTION AS MOOT
(Docket No. 5)
Petitioner, a California prisoner, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his state conviction. Petitioner has paid the filing fee. Dkt. No. 4.
DISCUSSION
A second or successive petition containing previously raised or new claims may not be filed in the district court unless the petitioner first obtains from the United States Court of Appeals an order authorizing the district court to consider the petition. 28 U.S.C. § 2244(b)(3)(A).
It appears that the instant habeas petition is second or successive. Petitioner indicates in the instant petition that he filed a federal habeas petition in this district which was denied in 2006. Dkt. No. 1-2 at 18-19; see Johnson v. Runnels, Case No. 02-05537 CW (PR). In that previous action, Petitioner challenged the same state conviction in 1999 (case no. B9341054) out of Santa Clara County Superior Court for two counts of carjacking, robbery, and attempted robbery, along with enhancements. Dkt. No. 1-2 at 19. In the instant action, Petitioner again challenges the same conviction based on a new claim that the trial court lacked jurisdiction. Id. at 21. Accordingly, this action is clearly a second or successive petition.
Before a second or successive petition may be filed in the district court, Petitioner must first obtain an order from the Ninth Circuit Court of Appeals authorizing this Court to consider a renewed challenge to his state conviction. See 28 U.S.C. § 2244(b)(3)(A). Petitioner has not presented such an order from the Ninth Circuit. Accordingly, the instant petition must be dismissed in its entirety as second and successive.
CONCLUSION
For the foregoing reasons, the instant petition for a writ of habeas corpus is DISMISSED without prejudice as second and successive. Petitioner may file another petition challenging the same state conviction in this Court if he obtains the necessary order from the Ninth Circuit.
In light of this dismissal, Petitioner's motion for an extension of time is DENIED as moot. Dkt. No. 5.
No certificate of appealability is warranted in this case. See Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on certificate of appealability in same order that denies petition). Petitioner has not shown "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This order terminates Docket No. 5.
IT IS SO ORDERED. Dated: April 28 , 2021
/s/_________
BETH LABSON FREEMAN
United States District Judge