Opinion
Shane Lamar Pitman, Petitioner, Pro se, San Jose, CA.
ORDER SUMMARILY DISMISSING PETITION FOR LACK OF JURISDICTION AND DENYING A CERTIFICATE OF APPEALABILITY
DALE S. FISCHER, UNITED STATES DISTRICT JUDGE.
On July 22, 2015, Shane L. Pitman (" Petitioner"), a California state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody (" Petition") pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2004 conviction in Los Angeles County Superior Court Case No. LA044588.
PROCEDURAL BACKGROUND
Pursuant to Fed.R.Evid. 201, the Court takes judicial notice of the records in Petitioner's prior federal habeas corpus actions in this Court: Pitman v. Runnels, Case No. CV 07-3864-DSF (VBK) (" Pitman I"), and Pitman v. Felker, Case No. CV 08-6161-DSF (VBK) (" Pitman II"). See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (" In particular, a court may take judicial notice of its own records in other cases, as well as the records of an inferior court in other cases.") (citations omitted); accord United States v. Howard, 381 F.3d 873, 876 n. 1 (9th Cir. 2004).
On June 14, 2007, in Pitman I, Petitioner filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenged his 2004 conviction in Los Angeles County Superior Court Case No. LA044588. (Pitman I, Dkt. No. 1.) On February 11, 2008, the Court dismissed Pitman I without prejudice on the grounds that Petitioner's claims were unexhausted. (Id., Dkt. Nos. 14, 16.)
On September 18, 2008, in Pitman II, Petitioner filed a second petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner again challenged his 2004 conviction in Los Angeles County Superior Court Case No. LA044588. (Pitman II, Dkt. No. 1.) On August 10, 2009, the Court dismissed Pitman II with prejudice as barred by the statute of limitations. (Id., Dkt. Nos. 15, 18.) On September 1, 2009, Petitioner filed a Notice of Appeal. (Id., Dkt. No. 20.) On April 13, 2011, the Ninth Circuit denied Petitioner's request for a certificate of appealability. (Id., Dkt. No. 26.)
On July 22, 2015, Petitioner filed the instant Petition, in which he challenges the same 2004 conviction at issue in Pitman I and Pitman II. (See Petition at 1.)
DISCUSSION
The Antiterrorism and Effective Death Penalty Act of 1996 (" AEDPA") provides, in pertinent part:
(b)(1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed unless --
(A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or
(B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and [P]
(ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.
(3)(A) 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)(1)-(3)(A); see also Rule 9 of the Rules Governing § 2254 Cases in the United States District Courts. " [D]ismissal of a habeas petition as untimely constitutes a disposition on the merits and [] a further petition challenging the same conviction would be 'second or successive' for purposes of 28 U.S.C. § 2244(b)." McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).
A district court does not have jurisdiction to consider a second or successive petition absent authorization from the court of appeals. Burton v. Stewart, 549 U.S. 147, 152, 127 S.Ct. 793, 166 L.Ed.2d 628 (2007) (per curiam); see also Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) (" When the AEDPA is in play, the district court may not, in the absence of proper authorization from the court of appeals, consider a second or successive habeas application.") (citation and quotation marks omitted).
The instant Petition is a second or successive petition challenging the same conviction imposed by the same judgment of the state court at issue in Pitman II, which was adjudicated on the merits. See McNabb, 576 F.3d at 1029. There is no indication in the record that Petitioner has obtained permission from the Ninth Circuit Court of Appeals to file a second or successive petition. This Court, therefore, lacks jurisdiction over the Petition under 28 U.S.C. § 2244(b)(3). See Burton, 549 U.S. at 152.
Rule 4 of the Rules Governing § 2254 Cases in the United States District Courts provides that if it plainly appears from the face of the petition and any exhibits annexed to it that the Petitioner is not entitled to relief in the district court, the judge shall summarily dismiss the petition. Here, summary dismissal is warranted.
Accordingly, the Court will dismiss the Petition without prejudice to Petitioner filing a new action if and when he obtains permission from the Ninth Circuit to file a successive petition.
If Petitioner obtains permission to file a second petition, he should file a new petition for writ of habeas corpus. He should not file an amended petition in this action or use the case number from this action because the instant action is being closed today. When Petitioner files a new petition, the Court will give the petition a new case number.
CERTIFICATE OF APPEALABILITY
Under the AEDPA, a state prisoner seeking to appeal a district court's final order in a habeas corpus proceeding must obtain a Certificate of Appealability (" COA") from the district judge or a circuit judge. 28 U.S.C. § 2253(c)(1)(A). A COA may issue " only if the applicant has made a substantial showing of the denial of a constitutional right." Id. at § 2253(c)(2); accord Williams v. Calderon, 83 F.3d 281, 286 (9th Cir. 1996). " A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further." Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003); see also Slack v. McDaniel, 529 U.S. 473, 483-84, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).
When a district court dismisses a petition on procedural grounds, the reviewing court should apply a two-step analysis, and a COA should issue if the petitioner can show both: (1) " that jurists of reason would find it debatable whether the district court was correct in its procedural ruling[; ]" and (2) " that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right[.]" Slack, 529 U.S. at 478.
The Court is dismissing the Petition without prejudice because it is a second or successive petition. Since the Petition is clearly a second or successive petition, Petitioner cannot make the requisite showing " that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 478.
ORDER
Based on the foregoing, IT IS ORDERED THAT:
1. The Petition is dismissed without prejudice for lack of jurisdiction;
2. A Certificate of Appealability is denied.
JUDGMENT
IT IS ADJUDGED that the above-captioned action is dismissed without prejudice.