Alexander Boddie v. Robert Burton

Opinion

Case 2:22-cv-05135-SVW-E Document 14 Filed 08/04/22 Page 1 of 4 Page ID #:5

ALEXANDER BODDIE, ) NO. CV 22-5135-SVW(E) ) Petitioner, ) ) v. ) ORDER OF DISMISSAL ) ) Respondent. ) ) On November 29, 2021, Petitioner filed a “Petition Under 28 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody” (“the Petition”) in the United States District Court for the Eastern District of California. The Petition challenges both a parole decision and Petitioner’s underlying Superior Court conviction and sentence. By Order dated July 22, 2022, the United States District Court for the Eastern District of California dismissed Petitioner’s challenge to the parole decision as without merit. The same Order transferred to this Court Petitioner’s challenge to the underlying Case 2:22-cv-05135-SVW-E Document 14 Filed 08/04/22 Page 2 of 4 Page ID #:6

conviction and sentence. In 2014, Petitioner previously challenged in this Court the same underlying conviction and sentence challenged in the present (Petition ¶ 14; see Boddie v. Duffy, CV 14-8964-SVW(E)). On October 9, 2015, this Court entered Judgment in Boddie v. Duffy, CV 14-8964-SVW(E), denying and dismissing Petitioner’s prior petition with prejudice as untimely. The United States Court of Appeals for the Ninth Circuit denied Petitioner’s request for a certificate of appealability on July 22, 2016. 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 Appeals 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.), cert. denied, 524 U.S. 965 (1998); Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. Mar. 6, 2008). The dismissal of a habeas petition as untimely 2 Case 2:22-cv-05135-SVW-E Document 14 Filed 08/04/22 Page 3 of 4 Page ID #:7

“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). Petitioner evidently has not yet obtained authorization from the Ninth Circuit Court of Appeals.1 Consequently, this Court cannot entertain the Petition’s challenge to Petitioner’s conviction and sentence. See Burton v. Stewart, 549 U.S. at 157; see also Remsen v. Att’y Gen. of Calif., 471 Fed. App’x 571, 571 (9th Cir. 2012) (if a petitioner fails to obtain authorization from the Court of Appeals to file a second or successive petition, “the district court lacks jurisdiction to consider the petition and should dismiss it.”) (citation omitted). /// /// /// /// /// /// /// /// /// /// /// 1 The docket for the United States Court of Appeals for the Ninth Circuit, available on the Pacer database on www.pacer.gov, does not reflect that anyone named Alexander Boddie has received authorization to file a second or successive petition. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records). 3 Case 2:22-cv-05135-SVW-E Document 14 Filed 08/04/22 Page4of4 Page ID#:8

For all of the foregoing reasons, the Petition is denied and 2] dismissed without prejudice. DATED: August 4 , 2022. (ein ote, STEPHEN V. WILSON UNITED STATES DISTRICT JUDGE 12] PRESENTED this 27th day of 13} July, 2022, by: /s/ CHARLES F. EICK 16] UNITED STATES MAGISTRATE JUDGE