Opinion
Case No. CV 16-623-GW(AJW)
02-03-2016
DEMOND W. POTTS, Petitioner, v. FRED FIGUEROA, Warden, Respondent.
MEMORANDUM AND ORDER DISMISSING PETITION
In 2002, petitioner was convicted of three counts of second degree robbery, one count of assault with a firearm, and one count of misdemeanor assault. He was sentenced to state prison for a term of twenty-three years and eight months. [Petition at 2].
Petitioner previously filed a petition for a writ of habeas corpus in this Court challenging his 2002 conviction. The previous petition was denied on the merits. Case No. CV 05-690-GW(AJW). The Court of Appeals affirmed the judgment on January 8, 2010.
On January 28, 2016, petitioner filed the present petition for a writ of habeas corpus. The present petition, which also challenges petitioner's 2002 conviction, is successive.
"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.
It is so ordered. Dated: February 3, 2016
Ninth Circuit Rule 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/_________
George H. Wu
United States District Judge