Jesse Perez v. Kathleen Allison

• Court: District Court, C.D. California
• Decided: June 7, 2022
• Docket: 5:22-cv-00940
• Status: Unknown

Opinion

Case 5:22-cv-00940-PA-E Document 5 Filed 06/07/22 Page 1 of 3 Page ID #:72

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 JESSE PEREZ, ) NO. ED CV 22-940-PA(E) ) 12 Petitioner, ) ) 13 v. ) ORDER OF DISMISSAL ) 14 KATHLEEN ALLISON, CDCR ) Secretary, ) 15 ) Respondent. ) 16 ______________________________) 17 18 On June 6, 2022, Petitioner filed a “Petition for Writ of Habeas 19 Corpus by a Person in State Custody.” The Petition challenges a 1997 20 San Bernardino County Superior Court “conviction and/or sentence” 21 (Petition at 2). Petitioner previously challenged this same 1997 22 Superior Court proceeding in a prior habeas corpus petition filed in 23 this Court. See Perez v. Kirkland, CV 06-222-PA(E). On September 22, 24 2006, this Court entered Judgment in Perez v. Kirkland, CV 06-222- 25 PA(E), denying and dismissing the prior petition with prejudice as 26 untimely and without merit. 27 /// 28 /// Case 5:22-cv-00940-PA-E Document 5 Filed 06/07/22 Page 2 of 3 Page ID #:73

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”). 13 Contrary to Petitioner’s apparent argument, a petition need not be 14 repetitive to be “second or successive,” within the meaning of 28 15 U.S.C. section 2244(b). See, e.g., Thompson v. Calderon, 151 F.3d 16 918, 920-21 (9th Cir.), cert. denied, 524 U.S. 965 (1998); Calbert v. 17 Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. Mar. 6, 2008). The 18 dismissal of a habeas petition as untimely “constitutes an 19 adjudication on the merits that renders future petitions under § 2254 20 challenging the same conviction ‘second or successive’ petitions under 21 § 2244(b).” McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). 22 Petitioner evidently has not yet obtained authorization from the Ninth 23 Circuit Court of Appeals.1 Consequently, this Court cannot entertain 24 the present Petition. See Burton v. Stewart, 549 U.S. at 157; see 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 Jesse Perez has 27 received authorization to file a second or successive petition. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th 28 Cir. 1988) (court may take judicial notice of court records). 2 Case 5:22-cv-00940-PA-E Document5 Filed 06/07/22 Page3of3 Page |ID#:74

1) also Remsen v. Att’y Gen. of Calif., 471 Fed. App’x 571, 571 (9th Cir. 2] 2012) (if a petitioner fails to obtain authorization from the Court of 3]| Appeals to file a second or successive petition, “the district court lacks jurisdiction to consider the petition and should dismiss it.”) 5] (citation omitted). 7 For all of the foregoing reasons, the Petition is denied and 8|| dismissed without prejudice. 10 LET JUDGMENT BE ENTERED ACCORDINGLY. 11 12 DATED: June 7, 2022. 13 > _ i hyd PERWY ANDERSON 16 UNITED STAVES DISTRICT JUDGE 17 18 19] PRESENTED this 7th day 20] of June, 2022, by: 21 22 /S/ CHARLES F. EICK 23] UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28