Opinion
ORDER SUMMARILY DISMISSING ACTION WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY
GEORGE H. WU, District Judge.
On March 27, 2015, petitioner Barnard McGaughy ("Petitioner"), a California prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus ("Petition"). [Dkt. No. 1.] Notably, it is his third federal petition challenging his 2002 state court conviction for torture, assault, and robbery. What's more, Petitioner filed the Petition even after the Ninth Circuit denied his request for permission to file a "second or successive" petition. Accordingly, and for the reasons discussed below, the Court finds that the Petition is an unauthorized "second or successive" petition, and summarily dismisses this action without prejudice for lack of jurisdiction. See 28 U.S.C. § 2244(b).
Petitioner is also known as Barnard McGauthy. [ See C.D. Cal. (FMO), Dkt. No. 26, at 1 n.1.]
By way of background, Petitioner first challenged his conviction in 2007. [ See C.D. Cal. Case No. CV 07-1596 GW (FMO), Dkt. No. 1.] That petition was denied. [ See id., Dkt No. 26, 30, 31.]
On May 22, 2013, Petitioner filed a second petition challenging the same conviction. [ See C.D. Cal. Case No. 13-3656 GW (JCG), Dkt. No. 1.] On July 12, 2013, this Court dismissed that action for lack of jurisdiction, on the grounds that Petitioner had not obtained authorization to file a "second or successive" petition. [ See id., Dkt. No. 4, at 3.] At that time, the Court explained that "it was incumbent on Petitioner under § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing this Court to consider the instant Petition prior to its filing." [ Id. ]
On August 9, 2013, Petitioner filed an application with the Ninth Circuit requesting permission to file a "second or successive" petition. [ See Ninth Cir. Case No. 13-72791, Dkt. No. 1.] On September 27, 2013, the Ninth Circuit denied Petitioner's application. [ See id., Dkt. No. 2.]
On March 27, 2015, Petitioner filed the instant petition, in which he again challenges the same conviction. (Pet. at 2.)
However, Petitioner has again failed to obtain the Ninth Circuit's authorization to file a "second or successive" petition. See 28 U.S.C. § 2244(b).
Accordingly, the Court must dismiss this third action for lack of jurisdiction. See id.
Additionally, for the reasons stated above, the Court finds that Petitioner has not shown that reasonable jurists would find it debatable whether this Court was correct in its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court thus declines to issue a certificate of appealability.
For the foregoing reasons, IT IS ORDERED THAT this action be SUMMARILY DISMISSED WITHOUT PREJUDICE for lack of jurisdiction, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.
IT IS FURTHER ORDERED THAT a Certificate of Appealability be DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.