Charles K. Scott v. California Department of Corrections and Rehabilitation

• Court: District Court, C.D. California
• Decided: September 21, 2022
• Docket: 5:22-cv-01643
• Status: Unknown

Opinion

Case 5:22-cv-01643-FMO-E Document 5 Filed 09/21/22 Page 1 of 3 Page ID #:15

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CHARLES K. SCOTT, JR. (a.k.a.) ) NO. ED CV 22-1643-FMO(E) PARNELL K. CURTIS, ) 12 ) Petitioner, ) 13 v. ) ) ORDER OF DISMISSAL 14 CALIFORNIA DEPARTMENT OF ) CORRECTIONS AND REHABILITATION,) 15 ) Respondents. ) 16 _______________________________) 17 18 On September 20, 2022, Petitioner filed a “Petition for Writ of 19 Habeas Corpus by a Person in State Custody” (“the Petition”). The 20 Petition challenges a 1998 Riverside Superior Court criminal judgment 21 (Petition at 2). Petitioner previously challenged this same Superior 22 Court judgment in a prior habeas corpus petition filed in this Court. 23 See Scott v. Ortiz, CV 01-359-HLJ(PLA). On May 15, 2007 this Court 24 entered judgment in Scott v. Ortiz, CV 01-359-HLJ(PLA), denying and 25 dismissing the prior petition on the merits with prejudice. 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 Case 5:22-cv-01643-FMO-E Document 5 Filed 09/21/22 Page 2 of 3 Page ID #:16

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). Petitioner evidently has not yet obtained 16 authorization from the Ninth Circuit Court of Appeals.1 Consequently, 17 this Court cannot entertain the present Petition. See Burton v. 18 Stewart, 549 U.S. at 157; Remsen v. Att’y Gen. of Calif., 471 Fed. 19 App’x 571, 571 (9th Cir. 2012) (if a petitioner fails to obtain 20 authorization from the Court of Appeals to file a second or successive 21 petition, “the district court lacks jurisdiction to consider the 22 petition and should dismiss it.”) (citation omitted). 23 24 25 1 The Court takes judicial notice of the docket of the United States Court of Appeals for the Ninth Circuit, available 26 on the PACER database. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice 27 of court records). The Ninth Circuit’s docket does not show that any individual with Petitioner’s name has obtained any order from 28 the Ninth Circuit authorizing the filing of a second or successive habeas petition in this Court. 2 Case 5:22-cv-01643-FMO-E Document 5 Filed 09/21/22 Page 3 of 3 Page ID #:17

1 For all of the foregoing reasons, the Petition is denied and 2 dismissed without prejudice. 3 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 DATED: September 21, 2022. 7 8 _____________/_s_/____________________ FERNANDO M. OLGUIN 9 UNITED STATES DISTRICT JUDGE 10 11 PRESENTED this 21st day of 12 September, 2022, by: 13 14 /s/ CHARLES F. EICK 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3