Opinion
CASE NO. ED CV 16-161-R (PJW)
09-09-2016
GILBERT ROBLES, JR., Petitioner, v. UNITED STATES DISTRICT COURT, Respondent.
ORDER DISMISSING SECOND OR SUCCESSIVE HABEAS CORPUS PETITION AND DENYING CERTIFICATE OF APPEALABILITY
Before the Court is Petitioner's latest attempt to challenge his 1996 conviction for second degree murder. His first petition was denied as untimely. See Robles v. Court, ED CV 12-158-R (PJW), April 26, 2012 Order Accepting Report and Recommendation of United States Magistrate Judge. This constituted a decision on the merits. See McNabb v. Yates, 576 F.3d 1028, 1029-30 (9th Cir. 2009). Petitioner's subsequent petitions were dismissed as second or successive. (See Robles v. United States, ED CV 13-284-R (PJW), March 6, 2013 Order; Robles v. Biter, ED CV 14-662-R (PJW), April 14, 2014 Order; Robles v. Biter, ED CV 14-816-R (PJW), April 30, 2014 Order; Robles v. Parent, ED CV 14-1046-R (PJW), May 30, 2014 Order; and Robles v. Supreme Court, ED CV 14-1927-R (PJW), September 22, 2014 Order.) The instant petition is also second and/or successive and is subject to dismissal on that ground. See 28 U.S.C. § 2244; McNabb, 576 F.3d at 1029-30 (holding dismissal of habeas petition for untimeliness renders subsequent petitions second or successive). Absent an order from the Ninth Circuit Court of Appeals, the Court does not have jurisdiction to entertain a second or successive petition. See 28 U.S.C. § 2244(3)(A). For that reason, the Petition is dismissed.
Further, the Court finds that Petitioner has not made a substantial showing of the denial of a constitutional right or that it erred in its procedural ruling and, therefore, a certificate of appealability will not issue in this action. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
IT IS SO ORDERED.
DATED: September 9, 2016.
/s/_________
MANUEL L. REAL
UNITED STATES DISTRICT JUDGE Presented by: /s/_________
PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE