Alexander Boddie v. Robert Burton

• Court: District Court, C.D. California
• Decided: August 4, 2022
• Docket: 2:22-cv-05135
• Status: Unknown

Opinion

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

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ALEXANDER BODDIE, ) NO. CV 22-5135-SVW(E) ) 12 Petitioner, ) ) 13 v. ) ORDER OF DISMISSAL ) 14 ROBERT BURTON, ) ) 15 Respondent. ) ) 16 17 18 On November 29, 2021, Petitioner filed a “Petition Under 28 19 U.S.C. § 2254 for Writ of Habeas Corpus By a Person in State Custody” 20 (“the Petition”) in the United States District Court for the Eastern 21 District of California. The Petition challenges both a parole 22 decision and Petitioner’s underlying Superior Court conviction and 23 sentence. 24 25 By Order dated July 22, 2022, the United States District Court 26 for the Eastern District of California dismissed Petitioner’s 27 challenge to the parole decision as without merit. The same Order 28 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

1 conviction and sentence. 2 3 In 2014, Petitioner previously challenged in this Court the same 4 underlying conviction and sentence challenged in the present (Petition 5 ¶ 14; see Boddie v. Duffy, CV 14-8964-SVW(E)). On October 9, 2015, 6 this Court entered Judgment in Boddie v. Duffy, CV 14-8964-SVW(E), 7 denying and dismissing Petitioner’s prior petition with prejudice as 8 untimely. The United States Court of Appeals for the Ninth Circuit 9 denied Petitioner’s request for a certificate of appealability on 10 July 22, 2016. 11 12 The Court must dismiss the present Petition in accordance with 13 28 U.S.C. section 2244(b) (as amended by the “Antiterrorism and 14 Effective Death Penalty Act of 1996”). Section 2244(b) requires that 15 a petitioner seeking to file a “second or successive” habeas petition 16 first obtain authorization from the Court of Appeals. See Burton v. 17 Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive 18 authorization from Court of Appeals before filing second or successive 19 petition, “the District Court was without jurisdiction to entertain 20 [the petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 21 2000) (“the prior-appellate-review mechanism set forth in § 2244(b) 22 requires the permission of the court of appeals before ‘a second or 23 successive habeas application under § 2254’ may be commenced”). A 24 petition need not be repetitive to be “second or successive,” within 25 the meaning of 28 U.S.C. section 2244(b). See, e.g., Thompson v. 26 Calderon, 151 F.3d 918, 920-21 (9th Cir.), cert. denied, 524 U.S. 965 27 (1998); Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. 28 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

1 “constitutes an adjudication on the merits that renders future 2 petitions under § 2254 challenging the same conviction ‘second or 3 successive’ petitions under § 2244(b).” McNabb v. Yates, 576 F.3d 4 1028, 1030 (9th Cir. 2009). Petitioner evidently has not yet obtained 5 authorization from the Ninth Circuit Court of Appeals.1 Consequently, 6 this Court cannot entertain the Petition’s challenge to Petitioner’s 7 conviction and sentence. See Burton v. Stewart, 549 U.S. at 157; see 8 also Remsen v. Att’y Gen. of Calif., 471 Fed. App’x 571, 571 (9th Cir. 9 2012) (if a petitioner fails to obtain authorization from the Court of 10 Appeals to file a second or successive petition, “the district court 11 lacks jurisdiction to consider the petition and should dismiss it.”) 12 (citation omitted). 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 25 1 The docket for the United States Court of Appeals for the Ninth Circuit, available on the Pacer database on 26 www.pacer.gov, does not reflect that anyone named Alexander Boddie has received authorization to file a second or successive 27 petition. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court 28 records). 3 Case 2:22-cv-05135-SVW-E Document 14 Filed 08/04/22 Page4of4 Page ID#:8

1 For all of the foregoing reasons, the Petition is denied and 2] dismissed without prejudice. 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 6 DATED: August 4 , 2022. 8 (ein ote, STEPHEN V. WILSON 10 UNITED STATES DISTRICT JUDGE 11 12] PRESENTED this 27th day of 13} July, 2022, by: 14 15 /s/ CHARLES F. EICK 16] UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28