Opinion
ORDER OF DISMISSAL
STEPHEN V. WILSON, District Judge.
On July 20, 2014, Petitioner constructively filed a "Petition for Writ of Habeas Corpus By a Person in State Custody" ("the Petition") (Docket Entry No. 1)
The Petition is signed and dated July 20, 2014, but was filed with the Clerk of the Court on July 29, 2014. A habeas petition is constructively filed on the date a prisoner presents the petition to prison authorities for forwarding to the Clerk of the Court. Saffold v. Newland, 250 F.3d 1262, 1268 (9th Cir. 2000), vacated on other grounds, 536 U.S. 214 (2002). For the purposes of this Order, the Court will assume that Petitioner presented his petition to prison officials for mailing on the date it was signed.
The Petition challenges Petitioner's 1994 state court convictions for second degree robbery, in violation of California Penal Code § 211, and felony evading, pursuant to Vehicle Code § 2800.2, and the 36 years to life sentence imposed for those convictions. (Pet. at 2). In response to question 10 on the form Petition, see Pet. at 7, petitioner admitted to having previously filed federal habeas petitions in this Court challenging the same convictions. See Donald Redick aka Donald Wright v. C.A. Terhune, et. al., No. CV 99-2338-HLH (CT) ("the prior habeas action"). On September 3, 1999, the assigned Magistrate Judge issued a Report and Recommendation that recommended that the petition be dismissed with prejudice as time-barred. (Id.; Docket Entry No. 31). On September 29, 1999, this Court issued an Order Accepting the Magistrate Judge's Report and Recommendation and entered Judgment in the prior habeas action, denying and dismissing the petition with prejudice. (Id.; Docket Entry Nos. 37-38). On January 6, 2000, this Court denied Petitioner a Certificate of Appealability. (Id.; Docket Entry No. 44). On April 26, 2000, the United States Court of Appeals for the Ninth Circuit denied Petitioner's request for a Certificate of Appealability. (Id.; Docket Entry No. 48).
The Court must dismiss the present Petition in accordance with 28 U.S.C. section 2244(b) (as amended by the "Antiterrorism and Effective Death Penalty Act of 1996"). Section 2244(b) requires that a petitioner seeking to file a "second or successive" habeas petition first obtain authorization from the court of appeals. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive authorization from Court of Appeal before filing second or successive petition, "the District Court was without jurisdiction to entertain [the petition]"); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) ("the prior-appellate-review mechanism set forth in § 2244(b) requires the permission of the court of appeals before a second or successive habeas application under § 2254' may be commenced"). A petition need not be repetitive to be "second or successive, " within the meaning of 28 U.S.C. section 2244(b). See, e.g., Thompson v. Calderon, 151 F.3d 918, 920-21 (9th Cir. 1998); Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. Mar. 6, 2008). The dismissal of a habeas petition as barred by the statute of limitations "constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction second or successive' petitions under § 2244(b)." McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). Because Petitioner has not yet obtained authorization from the Ninth Circuit Court of Appeals, this Court cannot entertain the present Petition. See Burton v. Stewart, 549 U.S. at 157.
The Court previously issued an Order indicating that the Petition was untimely by over sixteen years and affording Petitioner an opportunity to file a Supplemental Statement, explaining either how his Petition is timely on its face or otherwise entitled to equitable tolling (Docket Entry No. 3). The Court also ordered Respondent to lodge with the court "all documents relevant to a determination of whether the Petition is timely, successive, and exhausted." (Id.). On August 25, 2014 and August 29, 2014, Petitioner filed Supplemental Statements asserting that his Petition was entitled to statutory tolling because, inter alia, he had filed a state habeas petition within one year of the Supreme Court's decision in Martinez v. Ryan, ___ U.S. ___, 132 S.Ct. 1309 (2012). (Docket Entry Nos. 7-8). On October 17, 2014, Respondent lodged copies of documents pertaining to Plaintiff's direct appeal and state habeas petitions. (Docket Entry No. 13). Because the Court finds the Petition subject to dismissal as successive, it need not decide whether the Petition is timely under the Antiterrorism and Effective Death Penalty Act.
For all of the foregoing reasons, the Petition is denied and dismissed without prejudice.
LET JUDGMENT BE ENTERED ACCORDINGLY.