Melvin Simmons v. Kathleen Allison

• Court: District Court, C.D. California
• Decided: October 17, 2022
• Docket: 2:22-cv-07376
• Status: Unknown

Opinion

Case 2:22-cv-07376-TJH-E Document 6 Filed 10/17/22 Page 1 of 3 Page ID #:8

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MELVIN SIMMONS JR., ) NO. CV 22-7376-TJH(E) ) 12 Petitioner, ) ) 13 v. ) ORDER OF DISMISSAL ) 14 KATHLEEN ALLISON, ETC., ) ET AL., ) 15 ) Respondents. ) 16 ) 17 18 On September 29, 2022, Petitioner filed in the United States 19 District Court for the Eastern District of California a “Petition 20 Under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State 21 Custody” (“the Petition”). On October 13, 2022, this Court received a 22 transfer of the Petition from the Eastern District. The Petition 23 challenges a 1987 Los Angeles Superior Court criminal judgment. 24 Petitioner previously challenged this same Superior Court judgment in 25 a prior habeas corpus petition filed in this Court. See Simmons v. 26 Hill, CV 96-2174-TJH(CW). On July 15, 1999, this Court entered 27 judgment in Simmons v. Hill, CV 96-2174-TJH(CW), denying and 28 dismissing the prior petition on the merits with prejudice. Case 2:22-cv-07376-TJH-E Document 6 Filed 10/17/22 Page 2 of 3 Page ID #:9

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). Petitioner evidently has not yet obtained 18 authorization from the Ninth Circuit Court of Appeals.1 Consequently, 19 this Court cannot entertain the present Petition. See Burton v. 20 Stewart, 549 U.S. at 157; Remsen v. Att’y Gen. of Calif., 471 Fed. 21 App’x 571, 571 (9th Cir. 2012) (if a petitioner fails to obtain 22 23 1 The Court takes judicial notice of the docket of the 24 United States Court of Appeals for the Ninth Circuit, available on the PACER database. See Mir v. Little Company of Mary Hosp., 25 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records). The Ninth Circuit’s docket does not show that 26 any individual named Melvin Simmons has obtained any order from the Ninth Circuit authorizing the filing of a second or 27 successive habeas petition in this Court. In fact, the docket reflects that in 2011, the Ninth Circuit denied Petitioner 28 authorization to file a second or successive petition. See Simmons v. Felker, No. 11-70171. 2 Case 2:22-cv-07376-TJH-E Document6 Filed 10/17/22 Page 3o0f3 Page ID#:10

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). 5 For all of the foregoing reasons, the Petition is denied and 6]| dismissed without prejudice. 8 LET JUDGMENT BE ENTERED ACCORDINGLY. 10 DATED: OCTOBER 17, 2022. 11 _—_— — ER J. HATTER, JB 13 UNJZTED/STATES DISTRIC¥Y JUDGE 14 15] PRESENTED this 13th day of 16] October, 2022, by: 17 18 /s/ CHARLES F. EICK 19] UNITED STATES MAGISTRATE JUDGE 20 21 22 23 24 25 26 27 28