Opinion
Case No. CV 16-5963-GHK(AJW)
08-25-2016
TIMOTHY E. MACK, Petitioner, v. Warden, Respondent.
MEMORANDUM AND ORDER DISMISSING PETITION
In 2006, petitioner was convicted of three counts of first degree murder, and as to two of the murders, the jury found the special circumstance allegations to be true. Petitioner was sentenced to state prison for life without the possibility of parole. [Petition at 2].
Petitioner previously filed a petition for a writ of habeas corpus in this Court challenging his 2006 conviction. Case No. CV 09-4553-GHK(AN). On June 3, 2010, judgment was entered denying the petition on the merits. Both this Court and the Court of Appeals denied petitioner's application for a certificate of appealability. On August 11, 2011, the Court of Appeals denied petitioner's application for authorization to file a successive petition.
Petitioner filed the current petition for a writ of habeas corpus on August 10, 2016. The petition again challenges petitioner's 2006 conviction and sentence. [Petition at 2-3].
"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 authorization from the Court of Appeals, this successive petition is dismissed for lack of jurisdiction.
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. --------
It is so ordered. Dated: 8/25/16
/s/_________
George H. King
United States District Judge