Ajaelo v. Madden

Opinion

1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 JIDEOFOR AJAELO, No. C 20-6375 WHA (PR) 10 Petitioner, ORDER GRANTING MOTION TO DISMISS 11 v. (Dkt. No. 10) 12 RAYMOND MADDEN, 13 Respondent. / 14 15 Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 16 U.S.C. § 2254. Respondent has filed a motion to dismiss the petition because it is a successive 17 petition. Petitioner did not file an opposition or a request for an extension of time as of the 18 opposition’s deadline. 19 A successive petition may not be filed in this court unless petitioner first obtains from 20 the United States Court of Appeals for the Ninth Circuit an order authorizing this court to 21 consider the petition. See 28 U.S.C. § 2244(b)(3)(A). This requirement is jurisdictional. 22 Burton v. Stewart, 549 U.S. 147, 156 (2007) (per curiam). 23 In 2010, petitioner filed a federal habeas petition challenging a 2007 state court 24 judgment. See Ajaelo v. Uribe, Case No. C 10-3327 SI (PR) (N.D. Cal.). The court denied the 25 petition on its merits and a request for a certificate of appealability (“COA”). Ibid. The Ninth 26 circuit also denied a COA and reconsideration. See Ajaelo v. Uribe, No. C 12-16704 (9th Cir.). 27 In 2016, petitioner filed a second federal habeas petition challenging the same judgment. See 28 Ajaelo v. Madden, No. C 16-6962 WHA (PR) (N.D. Cal.). The court dismissed the petition as 1 C 17-16315 (9th Cir.). The United States Supreme Court denied a petition for writ of certiorari. 2 See Ajaelo v. Madden, 138 S. Ct. 928 (2018). 3 The instant petition challenges the same judgment as petitioner’s prior two federal 4 petitions. Petitioner has not, however, sought or obtained the necessary authorization from the 5 United States Court of Appeals for the Ninth Circuit to file a successive petition under Section 6 2244(b)(3)(A). Therefore, this is a successive petition that must be dismissed until petitioner 7 obtains the necessary authorization from the United States Court of Appeals. 8 The motion to dismiss is GRANTED, and the petition is DISMISSED without prejudice to 9 refiling if petitioner obtains authorization to file a successive petition. 10 No certificate of appealability is warranted in this case because a reasonable jurist would 11 not find the dismissal of this petition debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 12 (2000). 13 The clerk shall enter judgment and close the file. 14 IT IS SO ORDERED. 15 16 Dated: March 1 5 , 2021. WILLIAM ALSUP 17 UNITED STATES DISTRICT JUDGE 18 19 20 21 22 23 24 25 26 27 28