Opinion
Case No. CV 14-5144-ABC(AJW)
07-21-2014
MELVIN THOMAS, Petitioner, v. M. SPEARMAN, WARDEN, Respondent.
MEMORANDUM AND ORDER DISMISSING PETITION
In 1996, petitioner was convicted of possession of cocaine, and pursuant to the Three Strikes Law, he was sentenced to state prison for a term of 25 years to life. [Petition at 2, 5]. In 2003, petitioner filed a habeas corpus petition in this Court challenging that 1996 conviction. See Case No. CV 03-517-RSWL(AJW). That petition was dismissed with prejudice on July 28, 2003, because it was not filed within the AEDPA's one year limitation period. Petitioner did not appeal that judgment. On February 5, 2010, petitioner filed a second habeas corpus petition, again attempting to challenge his 1996 conviction. Case No. CV 10-00857-RSWL(AJW). On February 26, 2010, judgment was entered dismissing that petition as successive. Petitioner filed the current petition for a writ of habeas corpus on June 27, 2014. Like the prior petitions, the current petition seeks to challenge the validity of petitioner's 1996 conviction and sentence.
A federal court must dismiss a second or successive petition that raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). A federal court must also dismiss a second or successive petition raising a new ground unless the petitioner can show that (1) the claim rests on a new, retroactive, constitutional right or (2) the factual basis of the claim was not previously discoverable through due diligence, and those new facts establish by clear and convincing evidence that but for the constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2)(A)-(B).
It is not the district court, however, that decides whether a successive petition may proceed. Rather, "[b]efore 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 this successive petition. Burton v. Stewart, 549 U.S. 147, 152-153, 157 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001), cert. denied, 538 U.S. 984 (2003).
Petitioner's prior federal petition was dismissed with prejudice as untimely. A dismissal with prejudice based on the statute of limitation renders subsequent petitions successive under the AEDPA. McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009) (per curiam). Because petitioner has not obtained leave from the Court of Appeals to file a successive petition, this Court lacks jurisdiction to consider it. Accordingly, the petition for a writ of habeas corpus is dismissed for lack of jurisdiction.
IT IS SO ORDERED.
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Audrey B. Collins
United States District Judge