Ajaelo v. Madden

Opinion

IN THE UNITED STATES DISTRICT COURT JIDEOFOR AJAELO, No. C 20-6375 WHA (PR) Petitioner, ORDER GRANTING MOTION TO DISMISS v. (Dkt. No. 10) Respondent. / Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent has filed a motion to dismiss the petition because it is a successive petition. Petitioner did not file an opposition or a request for an extension of time as of the opposition’s deadline. A successive petition may not be filed in this court unless petitioner first obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). This requirement is jurisdictional. Burton v. Stewart, 549 U.S. 147, 156 (2007) (per curiam). In 2010, petitioner filed a federal habeas petition challenging a 2007 state court judgment. See Ajaelo v. Uribe, Case No. C 10-3327 SI (PR) (N.D. Cal.). The court denied the petition on its merits and a request for a certificate of appealability (“COA”). Ibid. The Ninth circuit also denied a COA and reconsideration. See Ajaelo v. Uribe, No. C 12-16704 (9th Cir.). In 2016, petitioner filed a second federal habeas petition challenging the same judgment. See Ajaelo v. Madden, No. C 16-6962 WHA (PR) (N.D. Cal.). The court dismissed the petition as C 17-16315 (9th Cir.). The United States Supreme Court denied a petition for writ of certiorari. See Ajaelo v. Madden, 138 S. Ct. 928 (2018). The instant petition challenges the same judgment as petitioner’s prior two federal petitions. Petitioner has not, however, sought or obtained the necessary authorization from the United States Court of Appeals for the Ninth Circuit to file a successive petition under Section 2244(b)(3)(A). Therefore, this is a successive petition that must be dismissed until petitioner obtains the necessary authorization from the United States Court of Appeals. The motion to dismiss is GRANTED, and the petition is DISMISSED without prejudice to refiling if petitioner obtains authorization to file a successive petition. No certificate of appealability is warranted in this case because a reasonable jurist would not find the dismissal of this petition debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000). The clerk shall enter judgment and close the file. Dated: March 1 5 , 2021. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE