Osbun Walton v. MCJ Terminal Annex 86164

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 OSBUN WALTON, ) Case No. 2:21-cv-7006-VAP(JPR) ) Petitioner, ) 12 ) ORDER SUMMARILY DISMISSING 13 v. ) PETITION FOR WRIT OF HABEAS ) CORPUS MCJ TERMINAL ANNEX 86164, ) 14 ) Respondent. ) 15 16 On August 30, 2021, Petitioner filed a habeas Petition 17 challenging his 1995 convictions in Los Angeles County Superior 18 Court (Pet. at 2) for first-degree murder and related crimes (see 19 Mot. at 3). On September 10, 2021, Respondent essentially moved 20 to dismiss, asking that the Court vacate its order requiring a 21 response to the Petition because it is successive and Petitioner 22 did not receive permission from the Ninth Circuit Court of 23 Appeals to file it. Petitioner has not timely filed any response 24 to the motion. 25 As Respondent notes, in 2000 this Court denied on the merits 26 Petitioner’s original habeas petition challenging the same 27 convictions and dismissed the case with prejudice. (See Lodged 28 Doc. 1.) The Ninth Circuit affirmed, and the U.S. Supreme Court 1 1 denied Petitioner’s petition for writ of certiorari. Walton v. 2 Carey, 181 F. App’x 632 (9th Cir.), cert. denied, 549 U.S. 1007 3 (2006). Nothing indicates that his state-court judgment has been 4 modified in any way since the merits denial. 5 The Antiterrorism and Effective Death Penalty Act provides: 6 (b)(1) A claim presented in a second or successive habeas 7 corpus application under section 2254 that was presented 8 in a prior application shall be dismissed. 9 (2) A claim presented in a second or successive habeas 10 corpus application under section 2254 that was not 11 presented in a prior application shall be dismissed 12 unless-- 13 (A) the applicant shows that the claim relies on a 14 new rule of constitutional law, made retroactive to 15 cases on collateral review by the Supreme Court, 16 that was previously unavailable; or 17 (B)(i) the factual predicate for the claim could 18 not have been discovered previously through the 19 exercise of due diligence; and 20 (ii) the facts underlying the claim, if proven and 21 viewed in light of the evidence as a whole, would 22 be sufficient to establish by clear and convincing 23 evidence that, but for constitutional error, no 24 reasonable factfinder would have found the 25 applicant guilty of the underlying offense. 26 (3)(A) Before a second or successive application 27 permitted by this section is filed in the district court, 28 the applicant shall move in the appropriate court of 2 1 appeals for an order authorizing the district court to 2 consider the application. 328 U.S.C. § 2244 (b). 4 The Petition is successive within the meaning of § 2244 (b) 5 |} because it challenges the same judgment as the earlier petition 6 || denied on the merits. Under § 2244(b), then, Petitioner was 7 || required to secure an order from the Ninth Circuit authorizing filing before he filed it. See Cooper v. Calderon, 274 F.3d 911270, 1274 (9th Cir. 2001) (per curiam). A review of the Ninth 10 |} Circuit’s docket indicates that he has not obtained such an 11 | order; indeed, he apparently has never even requested one. 12 Because it 1s successive and unauthorized, the Petition is 13 || DISMISSED without prejudice to its refiling should Petitioner 14 | obtain the necessary permission from the Ninth Circuit. 15 | Respondent’s motion to vacate is GRANTED. 16 ceeeeen ee eee vy Ar 4 A. hale 17 | DATED: October 18, 2021 ef VIRGIN JA A. PHILLIPS 18 U.S. STRICT JUDGE 19 1 Presented by: 20 | Am Arenhlat©r Jean Rosenbluth Magistrate Judge 22 23 24 25 26 27 28