1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SUA, Case No.: 26cv1294-RSH (MMP)
12 Petitioner, ORDER: 13 v. (1) SUMMARILY DISMISSING 14 P. HORN, Warden, et al., SUCCESSIVE PETITION PURSUANT 15 Respondents. TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION; AND 16
17 (2) DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 18 19 20 21 On February 23, 2026, Petitioner Michael Sua (“Petitioner”), a state prisoner 22 proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 23 challenging a May 27, 2004 San Diego Superior Court judgment of conviction in case 24 number SCE227747, along with a request to proceed in forma pauperis (“IFP”). ECF Nos. 25 1, 2. On March 2, 2026, the Court denied Petitioner’s request to proceed IFP and dismissed 26 the Petition without prejudice on various grounds. ECF No. 2. Following an extension of 27 time, Petitioner has now paid the filing fee and filed a First Amended Petition. ECF Nos. 28 5, 6. 1 I. THE GATEKEEPER PROVISION BARS PETITIONER’S CHALLENGE TO THE JUDGMENT IN CASE NO. SCE227747 2 3 This is not the first petition for a writ of habeas corpus Petitioner has filed in this 4 Court challenging his 2004 San Diego County Superior Court judgment of conviction in 5 case number SCE227747. 6 On July 23, 2007, Petitioner filed in this Court a petition for a writ of habeas corpus 7 challenging this same 2004 judgment of conviction in case number SCE227747, of which 8 the Court takes judicial notice. See ECF No. 1 in Sua v. Cate, et al., S.D. Cal. Case No. 9 07cv1338-JM (BLM); see United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] 10 court may take judicial notice of its own records in other cases, as well as the records of an 11 inferior court in other cases.”) On November 15, 2010, the Court denied that petition on 12 the merits with prejudice, and the denial was affirmed on appeal. See ECF Nos. 50, 54 in 13 S.D. Cal. Case No. 07cv1338-JM (BLM). In the instant petition, Petitioner again indicates 14 he seeks to challenge the same 2004 judgment of conviction. ECF No. 6 at 19. 15 “The Antiterrorism and Effective Death Penalty Act (‘AEDPA’) implemented 16 a gatekeeper function, requiring that successive § 2254 petitions be dismissed unless they 17 meet one of the exceptions outlined in 28 U.S.C. § 2244(b)(2).” Woods v. Carey, 525 F.3d 18 886, 888 (9th Cir. 2008). “Under that provision, a successive application is permissible 19 only if it rests on a new rule of constitutional law, facts that were previously unavailable, 20 or facts that would be sufficient to show constitutional error in the petitioner’s conviction.” 21 Id. (citing 28 U.S.C. § 2244(b)(2)). “Even if a petitioner can demonstrate that he qualifies 22 for one of these exceptions, he must seek authorization from the court of appeals before 23 filing his new petition with the district court.” Id. (citing 28 U.S.C. § 2244(b)(3)). 24 Here, Petitioner acknowledges that this is not his first federal petition for a writ of 25 habeas corpus challenging that judgment of conviction. See ECF No. 6 at 27; see Burton v. 26 Stewart, 549 U.S. 147, 153 (2007) (a petition is “second or successive” where the petitioner 27 challenges “the same custody imposed by the same judgment of a state court” as in a prior 28 petition). Even were Petitioner able to demonstrate that his petition falls within the 1 statutory provisions allowing for permission to file a second or successive habeas petition, 2 see 28 U.S.C. § 2244(b)(2)(A)-(B), Petitioner must still first obtain authorization from the 3 Ninth Circuit Court of Appeals to file a petition in this District. See 28 U.S.C. § 4 2244(b)(3)(A) (“Before a second or successive application permitted by this section is filed 5 in the district court, the applicant shall move in the appropriate court of appeals for an order 6 authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A)”); see 7 also Morales v. Sherman, 949 F.3d 474, 476 (9th Cir. 2020) (per curiam) (recognizing that 8 28 U.S.C. § 2244(b)(3)(A) is “a provision that bars district courts from entertaining a 9 second or successive petition unless its filing has first been authorized by the court of 10 appeals”). 11 In the section of the Petition form in which Petitioner acknowledges he previously 12 challenged this conviction in S.D. Cal. Case No. 07cv1338-JM (BLM), Petitioner has left 13 blank the question whether he has obtained permission from the Ninth Circuit Court of 14 Appeals to file a second or successive petition (see ECF No. 6 at 27), and the Court’s 15 review of the Ninth Circuit’s electronic docket similarly fails to reflect that Petitioner has 16 obtained such permission from the Ninth Circuit. Accordingly, this Court lacks jurisdiction 17 to consider the instant federal Petition. 18 II. CERTIFICATE OF APPEALABILITY 19 A certificate of appealability (“COA”) is required to appeal “the final order in a 20 habeas corpus proceeding in which the detention complained of arises out of process issued 21 by a State court,” and is warranted “only if the applicant has made a substantial showing 22 of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A) and (c)(2). “When the 23 district court denies a habeas petition on procedural grounds without reaching the 24 prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, 25 at least, that jurists of reason would find it debatable whether the petition states a valid 26 claim of the denial of a constitutional right and that jurists of reason would find it debatable 27 whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 28 473, 484 (2000). 1 In the instant case, because Petitioner previously filed a petition challenging his 2004 2 ||San Diego County judgment of conviction which was denied on the merits, and there is no 3 indication Petitioner has received permission from the Ninth Circuit Court of Appeals to 4 a second or successive petition, the Court is not persuaded that Petitioner has shown 5 ||“‘yurists of reason would find it debatable whether the district court was correct” in 6 || dismissing the instant petition for lack of authorization. See 28 U.S.C. § 2244(b)(3)(A); 28 7 U.S.C. § 2253(c); Burton, 549 U.S. at 153; Slack, 529 U.S. at 484. Accordingly, the Court 8 || declines to issue a COA.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL SUA, Case No.: 26cv1294-RSH (MMP)
12 Petitioner, ORDER: 13 v. (1) SUMMARILY DISMISSING 14 P. HORN, Warden, et al., SUCCESSIVE PETITION PURSUANT 15 Respondents. TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION; AND 16
17 (2) DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 18 19 20 21 On February 23, 2026, Petitioner Michael Sua (“Petitioner”), a state prisoner 22 proceeding pro se, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254 23 challenging a May 27, 2004 San Diego Superior Court judgment of conviction in case 24 number SCE227747, along with a request to proceed in forma pauperis (“IFP”). ECF Nos. 25 1, 2. On March 2, 2026, the Court denied Petitioner’s request to proceed IFP and dismissed 26 the Petition without prejudice on various grounds. ECF No. 2. Following an extension of 27 time, Petitioner has now paid the filing fee and filed a First Amended Petition. ECF Nos. 28 5, 6. 1 I. THE GATEKEEPER PROVISION BARS PETITIONER’S CHALLENGE TO THE JUDGMENT IN CASE NO. SCE227747 2 3 This is not the first petition for a writ of habeas corpus Petitioner has filed in this 4 Court challenging his 2004 San Diego County Superior Court judgment of conviction in 5 case number SCE227747. 6 On July 23, 2007, Petitioner filed in this Court a petition for a writ of habeas corpus 7 challenging this same 2004 judgment of conviction in case number SCE227747, of which 8 the Court takes judicial notice. See ECF No. 1 in Sua v. Cate, et al., S.D. Cal. Case No. 9 07cv1338-JM (BLM); see United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] 10 court may take judicial notice of its own records in other cases, as well as the records of an 11 inferior court in other cases.”) On November 15, 2010, the Court denied that petition on 12 the merits with prejudice, and the denial was affirmed on appeal. See ECF Nos. 50, 54 in 13 S.D. Cal. Case No. 07cv1338-JM (BLM). In the instant petition, Petitioner again indicates 14 he seeks to challenge the same 2004 judgment of conviction. ECF No. 6 at 19. 15 “The Antiterrorism and Effective Death Penalty Act (‘AEDPA’) implemented 16 a gatekeeper function, requiring that successive § 2254 petitions be dismissed unless they 17 meet one of the exceptions outlined in 28 U.S.C. § 2244(b)(2).” Woods v. Carey, 525 F.3d 18 886, 888 (9th Cir. 2008). “Under that provision, a successive application is permissible 19 only if it rests on a new rule of constitutional law, facts that were previously unavailable, 20 or facts that would be sufficient to show constitutional error in the petitioner’s conviction.” 21 Id. (citing 28 U.S.C. § 2244(b)(2)). “Even if a petitioner can demonstrate that he qualifies 22 for one of these exceptions, he must seek authorization from the court of appeals before 23 filing his new petition with the district court.” Id. (citing 28 U.S.C. § 2244(b)(3)). 24 Here, Petitioner acknowledges that this is not his first federal petition for a writ of 25 habeas corpus challenging that judgment of conviction. See ECF No. 6 at 27; see Burton v. 26 Stewart, 549 U.S. 147, 153 (2007) (a petition is “second or successive” where the petitioner 27 challenges “the same custody imposed by the same judgment of a state court” as in a prior 28 petition). Even were Petitioner able to demonstrate that his petition falls within the 1 statutory provisions allowing for permission to file a second or successive habeas petition, 2 see 28 U.S.C. § 2244(b)(2)(A)-(B), Petitioner must still first obtain authorization from the 3 Ninth Circuit Court of Appeals to file a petition in this District. See 28 U.S.C. § 4 2244(b)(3)(A) (“Before a second or successive application permitted by this section is filed 5 in the district court, the applicant shall move in the appropriate court of appeals for an order 6 authorizing the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A)”); see 7 also Morales v. Sherman, 949 F.3d 474, 476 (9th Cir. 2020) (per curiam) (recognizing that 8 28 U.S.C. § 2244(b)(3)(A) is “a provision that bars district courts from entertaining a 9 second or successive petition unless its filing has first been authorized by the court of 10 appeals”). 11 In the section of the Petition form in which Petitioner acknowledges he previously 12 challenged this conviction in S.D. Cal. Case No. 07cv1338-JM (BLM), Petitioner has left 13 blank the question whether he has obtained permission from the Ninth Circuit Court of 14 Appeals to file a second or successive petition (see ECF No. 6 at 27), and the Court’s 15 review of the Ninth Circuit’s electronic docket similarly fails to reflect that Petitioner has 16 obtained such permission from the Ninth Circuit. Accordingly, this Court lacks jurisdiction 17 to consider the instant federal Petition. 18 II. CERTIFICATE OF APPEALABILITY 19 A certificate of appealability (“COA”) is required to appeal “the final order in a 20 habeas corpus proceeding in which the detention complained of arises out of process issued 21 by a State court,” and is warranted “only if the applicant has made a substantial showing 22 of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A) and (c)(2). “When the 23 district court denies a habeas petition on procedural grounds without reaching the 24 prisoner’s underlying constitutional claim, a COA should issue when the prisoner shows, 25 at least, that jurists of reason would find it debatable whether the petition states a valid 26 claim of the denial of a constitutional right and that jurists of reason would find it debatable 27 whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 28 473, 484 (2000). 1 In the instant case, because Petitioner previously filed a petition challenging his 2004 2 ||San Diego County judgment of conviction which was denied on the merits, and there is no 3 indication Petitioner has received permission from the Ninth Circuit Court of Appeals to 4 a second or successive petition, the Court is not persuaded that Petitioner has shown 5 ||“‘yurists of reason would find it debatable whether the district court was correct” in 6 || dismissing the instant petition for lack of authorization. See 28 U.S.C. § 2244(b)(3)(A); 28 7 U.S.C. § 2253(c); Burton, 549 U.S. at 153; Slack, 529 U.S. at 484. Accordingly, the Court 8 || declines to issue a COA. 9 CONCLUSION 10 Because there is no indication that the Ninth Circuit Court of Appeals has granted 11 || Petitioner leave to file a second or successive petition challenging his 2004 judgment of 12 ||}conviction in San Diego Superior Court case number SCE227747, this Court cannot 13 ||consider the Petition. Accordingly, the Court DISMISSES this habeas action without 14 || prejudice to Petitioner filing a petition in this Court challenging that judgment of conviction 15 ||1f he obtains the necessary order from the Ninth Circuit Court of Appeals. The Court 16 || DECLINES to issue a COA. The Clerk of Court is directed to send Petitioner a blank 17 Ninth Circuit Application for Leave to File a Second or Successive Petition Under 28 18 U.S.C. § 2254 together with a copy of this Order. 19 IT IS SO ORDERED. 20 || Dated: June 24, 2026 ‘ 54 Jekut C [ove Hon. Robert S. Huie United States District Judge 23 24 25 26 27 28