Anthony Philyaw v. S. Moore

• Court: District Court, C.D. California
• Decided: November 4, 2022
• Docket: 2:22-cv-08007
• Status: Unknown

Opinion

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ANTHONY PHILYAW, ) NO. CV 22-8007-CJC(E) ) 12 Petitioner, ) ) 13 v. ) ORDER OF DISMISSAL ) 14 S. MOORE, ) ) 15 Respondent. ) ______________________________) 16 17 18 On November 1, 2022, Petitioner filed a “Petition for Writ of 19 Habeas Corpus by a Person in State Custody.” The Petition challenges 20 Petitioner’s conviction and sentence in Los Angeles Superior Court 21 case number BA 447321 (Petition at 2). Petitioner previously 22 challenged the same conviction and sentence in a habeas petition filed 23 in this Court in 2020. See Philyaw v. Madden, No. CV 20-4436-CJC(E) 24 (“the prior habeas petition”). By Judgment entered January 14, 2021, 25 this Court denied and dismissed the prior habeas petition with 26 prejudice. 27 /// 28 /// Case 2:22-cv-08007-CJC-E Document 5 Filed 11/04/22 Page 2 of 4 Page ID #:22

1 The Court must dismiss the present Petition in accordance with 2 28 U.S.C. section 2244(b) (as amended by the “Antiterrorism and 3 Effective Death Penalty Act of 1996”). Section 2244(b) requires that 4 a petitioner seeking to file a “second or successive” habeas petition 5 first obtain authorization from the Court of Appeals. See Burton v. 6 Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive 7 authorization from Court of Appeals before filing second or successive 8 petition, “the District Court was without jurisdiction to entertain 9 [the petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 10 2000) (“the prior-appellate-review mechanism set forth in § 2244(b) 11 requires the permission of the court of appeals before ‘a second or 12 successive habeas application under § 2254’ may be commenced”). A 13 petition need not be repetitive to be “second or successive,” within 14 the meaning of 28 U.S.C. section 2244(b). See, e.g., Thompson v. 15 Calderon, 151 F.3d 918, 920-21 (9th Cir.), cert. denied, 524 U.S. 965 16 (1998); Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. 17 Mar. 6, 2008). Petitioner evidently has not yet obtained 18 authorization from the Ninth Circuit Court of Appeals.1 Consequently, 19 this Court cannot entertain the present Petition. See Burton v. 20 Stewart, 549 U.S. at 157; see also Remsen v. Att’y Gen. of Calif., 471 21 Fed. App’x 571, 571 (9th Cir. 2012) (if a petitioner fails to obtain 22 authorization from the Court of Appeals to file a second or successive 23 petition, “the district court lacks jurisdiction to consider the 24 25 1 The docket for the United States Court of Appeals for 26 the Ninth Circuit, available on the Pacer database on www.pacer.gov, does not reflect that anyone named Anthony Philyaw 27 has received authorization to file a second or successive petition. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 28 649 (9th Cir. 1988) (court may take judicial notice of court records). 2 Case 2:22-cv-08007-CJC-E Document5 Filed 11/04/22 Page3of4 Page □□ #:23

1] petition and should dismiss it.”) (citation omitted). 3 For all of the foregoing reasons, the Petition is denied and 4] dismissed without prejudice. 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 DATED: November 4, 2022. 10 4 Ko / Lo □ □ □□ Of 12 13 CORMAC J. CARNEY 14 UNITED STATES DISTRICT JUDGE 15 16|| PRESENTED this 3rd day 17] of November, 2022, by: 18 19 [s/ CHARLES F. EICK 20] UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28

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