Opinion
Case No. CV 15-4626-JVS(AJW)
11-18-2015
MAURICE WASHINGTON, Petitioner, v. J. SOTO, Warden, Respondent.
MEMORANDUM AND ORDER DISMISSING PETITION
Petitioner, a state prisoner, was convicted of one count of assault causing great bodily injury, one count of first degree residential burglary, and one count of first degree robbery. [Petition at 2]. On February 29, 1996, he was sentenced to state prison for a term of 31 years to life. [Petition at 2].
On April 15, 2009, petitioner filed a petition for a writ of habeas corpus in this Court challenging his 1996 conviction and sentence. [Case No. CV 09-2632-JVS(AJW)]. That petition was dismissed as untimely on February 24, 2010. Petitioner's requests for a certificate of appealability were denied both by this Court and by the Ninth Circuit Court of Appeals.
The present habeas corpus petition filed by petitioner again challenges his 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 under 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. Dated: November 18, 2015
/s/_________
James V. Selna
United States District Judge