Opinion
Case No. CV 16-1147 CAS (AJW)
02-23-2016
SHANNON JACOBS, Petitioner, v. STANDING DIRECTOR OF CDCR, Respondent.
MEMORANDUM AND ORDER DISMISSING PETITION
On September 17, 2002, petitioner pleaded no contest to two counts of second degree murder and was sentenced to state prison for two terms of fifteen years to life. [Petition at 2].
On November 1, 2005, petitioner filed a habeas corpus petition in this Court challenging his 2002 conviction. Case No. CV 05-8537-GAF(AJW). The petition was dismissed as untimely on June 27, 2006. Petitioner's requests for a certificate of appealability were denied by both this Court and the Court of Appeals.
Petitioner filed two additional petitions in this Court challenging his 2002 conviction, both of which were dismissed for lack of jurisdiction. Case Nos. CV 09-0070-GAF(AJW) and 12-8368-GAF(AJW).
Petitioner filed the current petition for a writ of habeas corpus on February 18, 2016. The petition, which again challenges petitioner's 2002 conviction, is successive. See McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009) (per curiam) (holding that a dismissal with prejudice based upon the statute of limitation renders subsequent petitions successive under the AEDPA).
"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). Absent authorization from the Court of Appeals, this Court lacks jurisdiction over a successive petition. See Magwood v. Patterson, 561 U.S. 320, 330-331 (2010); 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 is dismissed for lack of jurisdiction.
Petitioner has filed two applications for authorization to file a successive petition, both of which were denied by the Court of Appeals. Ninth Circuit Case Nos. 10-73769 and 13-71089.
It is so ordered. Dated: February 23, 2016
Ninth Circuit Rule No. 22-3(a) provides that "[i]f a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals." Because the circumstances indicate that petitioner intentionally filed this action in this Court, not that he did so mistakenly, Rule 22-3(a) is inapplicable. Nevertheless, the Clerk is directed to mail petitioner a copy of Ninth Circuit Form 12 so that petitioner may file an application for leave to file a second or successive petition in the Court of Appeals. --------
/s/_________
Christina A. Snyder
United States District Judge