Casey O Carroll v. R.C. Johnson

• Court: District Court, C.D. California
• Decided: October 28, 2020
• Docket: 2:20-cv-09546
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CASEY O. CARROLL, ) NO. CV 20-9546-DSF(E) ) 12 Petitioner, ) ) 13 v. ) ORDER OF DISMISSAL ) 14 R.C. JOHNSON, Warden, ) ) 15 Respondent. ) ______________________________) 16 17 18 On October 15, 2020, Petitioner filed a “Petition for Writ of 19 Habeas Corpus by a Person in State Custody.” The Petition challenges 20 a 1995 Los Angeles Superior Court “conviction and/or sentence” 21 (Petition at 2). Petitioner previously challenged this same 1995 22 Superior Court proceeding in a prior habeas corpus petition filed in 23 this Court. See Carroll v. Giurbino, CV 02-1295-FMC(Mc). On 24 November 25, 2003, this Court entered Judgment in Carroll v. Giurbino, 25 CV 02-1295-FMC(Mc), dismissing the prior petition as untimely. 26 27 The Court must dismiss the present Petition in accordance with 28 28 U.S.C. section 2244(b) (as amended by the “Antiterrorism and 1 Effective Death Penalty Act of 1996”). Section 2244(b) requires that 2 a petitioner seeking to file a “second or successive” habeas petition 3 first obtain authorization from the Court of Appeals. See Burton v. 4 Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive 5 authorization from Court of Appeals before filing second or successive 6 petition, “the District Court was without jurisdiction to entertain 7 [the petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 8 2000) (“the prior-appellate-review mechanism set forth in § 2244(b) 9 requires the permission of the court of appeals before ‘a second or 10 successive habeas application under § 2254’ may be commenced”). A 11 petition need not be repetitive to be “second or successive,” within 12 the meaning of 28 U.S.C. section 2244(b). See, e.g., Thompson v. 13 Calderon, 151 F.3d 918, 920-21 (9th Cir.), cert. denied, 524 U.S. 965 14 (1998); Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. 15 Mar. 6, 2008). The dismissal of a habeas petition as untimely 16 “constitutes an adjudication on the merits that renders future 17 petitions under § 2254 challenging the same conviction ‘second or 18 successive’ petitions under § 2244(b).” McNabb v. Yates, 576 F.3d 19 1028, 1030 (9th Cir. 2009). Petitioner evidently has not yet obtained 20 authorization from the Ninth Circuit Court of Appeals.1 Consequently, 21 this Court cannot entertain the present Petition. See Burton v. 22 Stewart, 549 U.S. at 157; see also Remsen v. Att’y Gen. of Calif., 471 23 Fed. App’x 571, 571 (9th Cir. 2012) (if a petitioner fails to obtain 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 Casey Carroll 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 1 authorization from the Court of Appeals to file a second or successive 2 petition, “the district court lacks jurisdiction to consider the 3 petition and should dismiss it.”) (citation omitted). 4 5 Contrary to Petitioner’s implicit argument, Petitioner’s 6 purported “actual innocence” would not permit an exception to section 7 2244(b)’s requirement of first obtaining authorization from the Ninth 8 Circuit Court of Appeals to file a second or successive petition. See 9 Gage v. Chappell, 793 F.3d 1159, 1169 (9th Cir. 2015); Ivey v. Paramo, 10 2018 WL 4153147, at *3 (S.D. Cal. Aug. 30, 2018); see also Woods v. 11 Carey, 525 F.3d 886, 888 (9th Cir. 2008) (even when a petitioner can 12 demonstrate he or she qualifies for an exception contemplated in 13 section 2244(b)(2), the petitioner “must seek authorization from the 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 /// 21 /// 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1] court of appeals before filing his new petition with the district court”). 3 4 For all of the foregoing reasons, the Petition is denied and 5] dismissed without prejudice. 6 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 9 DATED: October 28, 2020. 10

1D ABZLAMO - AT. UU Haeore”. DALE S. FISCHER 13 UNITED STATES DISTRICT JUDGE 14 15|| PRESENTED this 19th day 16] of October, 2020, by: 17 18 L[Sfo CHARLES F. EICK 19} UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28