Efren Valencia v. State of California

Opinion

EFREN VALENCIA, ) NO. CV 19-7228-FMO(E) ) Petitioner, ) ) v. ) ORDER OF DISMISSAL ) ) Respondent. ) ______________________________) On August 20, 2019, Petitioner filed a “Petition for Writ of Habeas Corpus By a Person in State Custody,” accompanied by a “Motion for Review and Modification of Sentence” and a “Motion for Appointment of Counsel.” The Court construes the “Petition for Writ, etc.” and accompanying “Motion for Review, etc.” together as constituting the Petition. The Petition seeks to challenge a San Luis Obispo Superior Court criminal judgment (Petition, p. 2). Petitioner previously challenged the same Superior Court judgment in a prior habeas corpus petition filed in this Court. See Valencia v. Allison, CV 10-5500-GHK(VBK). On February 23, 2011, this Court entered judgment in Valencia v. Allison, CV 10-5500-GHK(VBK), dismissing the prior petition with prejudice as untimely. The Court must dismiss the present Petition in accordance with 28 U.S.C. section 2244(b) (as amended by the “Antiterrorism and Effective Death Penalty Act of 1996”). Section 2244(b) requires that a petitioner seeking to file a “second or successive” habeas petition first obtain authorization from the Court of Appeals. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive authorization from Court of Appeals before filing second or successive petition, “the District Court was without jurisdiction to entertain [the petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 2000) (“the prior-appellate-review mechanism set forth in § 2244(b) requires the permission of the court of appeals before ‘a second or successive habeas application under § 2254’ may be commenced”). A petition need not be repetitive to be “second or successive,” within the meaning of 28 U.S.C. section 2244(b). See, e.g., Thompson v. Calderon, 151 F.3d 918, 920-21 (9th Cir.), cert. denied, 524 U.S. 965 (1998); Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. Mar. 6, 2008). The dismissal of a habeas petition as untimely “constitutes an adjudication on the merits that renders future petitions under § 2254 challenging the same conviction ‘second or successive’ petitions under § 2244(b).” McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). Petitioner evidently has not yet obtained /// /// /// authorization from the Ninth Circuit Court of Appeals.1 Consequently, this Court cannot entertain the present Petition. See Burton v. Stewart, 549 U.S. at 157; see also Remsen v. Att’y Gen. of Calif., 471 Fed. App’x 571, 571 (9th Cir. 2012) (if a petitioner fails to obtain authorization from the Court of Appeals to file a second or successive petition, “the district court lacks jurisdiction to consider the petition and should dismiss it.”) (citation omitted). /// /// /// /// /// /// /// /// /// /// /// /// /// /// /// 1 The Court takes judicial notice of the docket of the United States Court of Appeals for the Ninth Circuit, available 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 of court records). The Ninth Circuit’s docket does not show that any individual named Efren Valencia has obtained any order from the Ninth Circuit permitting the filing of a second or successive For all of the foregoing reasons, the Petition is denied and dismissed without prejudice.2 DATED: August 28, 2019. _______________/_s_/__________________ FERNANDO M. OLGUIN UNITED STATES DISTRICT JUDGE PRESENTED this 22nd day of August, 2019, by: /s/ CHARLES F. EICK 2 In light of this disposition, Plaintiff’s request for the appointment of counsel is denied. See Knaubert v. Goldsmith, 791 F.2d 722, 728-30 (9th Cir.), cert. denied, 479 U.S. 867