Eddie Ashley v. Christian Pfeiffer

• Court: District Court, C.D. California
• Decided: March 23, 2021
• Docket: 2:21-cv-02367
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EDDIE ASHLEY, ) NO. CV 21-2367-DOC(E) ) 12 Petitioner, ) ) 13 v. ) ORDER OF DISMISSAL ) 14 CHRISTIAN PFEIFFER, Warden, ) ) 15 Respondent. ) ) 16 17 18 Petitioner filed a “Petition for Writ of Habeas Corpus By a 19 Person in State Custody” on March 15, 2021. The Petition seeks to 20 challenge a 2010 Los Angeles Superior Court criminal judgment 21 (Petition, p. 2). 22 23 Petitioner previously challenged this same Superior Court 24 judgment in a prior habeas corpus petition filed in this Court. See 25 Ashley v. Biter, CV-14-1572-DOC(JGB). On January 8, 2015, this Court 26 entered Judgment in Ashley v. Biter, CV-14-1572-DOC(JGB), dismissing 27 the prior petition with prejudice as untimely. 28 /// 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). The dismissal of a habeas petition as untimely 18 “constitutes an adjudication on the merits that renders future 19 petitions under § 2254 challenging the same conviction ‘second or 20 successive’ petitions under § 2244(b).” McNabb v. Yates, 576 F.3d 21 1028, 1030 (9th Cir. 2009). Petitioner evidently has not yet obtained 22 authorization from the Ninth Circuit Court of Appeals.1 Consequently, 23 this Court cannot entertain the present Petition. See Burton v. 24 Stewart, 549 U.S. at 157; see also Remsen v. Att’y Gen. of Calif., 471 25 1 The Court takes judicial notice of the Ninth Circuit 26 docket available on the PACER database at www.pacer.gov. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 27 1988) (court may take judicial notice of court records). The docket does not reflect that anyone named Eddie Ashley has 28 1] Fed. App’x 571, 571 (9th Cir. 2012) (if a petitioner fails to obtain 2] authorization from the Court of Appeals to file a second or successive 3] petition, “the district court lacks jurisdiction to consider the 4] petition and should dismiss it.”) (citation omitted). 5 6 For all of the foregoing reasons, the Petition is denied and dismissed without prejudice. 8 9 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 11 DATED: March 23, 2021 Le Ahnit @ Cut 14 DAVID O. CARTER I UNITED STATES DISTRICT JUDGE 16 17] PRESENTED this 19th day of 18] March, 2021, by: 19 20 /s/ CHARLES F. EICK 21] UNITED STATES MAGISTRATE JUDGE 22 23 24 25 26 At 28