Zuri Sana-Kabisa Young v. R.L. Johnson

Opinion

Case 5:23-cv-00436-ODW-E Document 6 Filed 03/16/23 Page 1 of 3 Page ID #:38

ZURI SANA-KABISA YOUNG, ) NO. ED CV 23-436-ODW(E) ) Petitioner, ) ) v. ) ORDER OF DISMISSAL ) ) ) Respondents. ) ______________________________) On March 13, 2023, Petition filed a “Petition for Writ of Habeas Corpus by a Person in State Custody.” The Petition challenges a 1998 San Bernardino Superior Court criminal judgment (Petition at 2). Petitioner previously challenged this same Superior Court criminal judgment in a federal habeas petition, which was filed in 2001 and denied with prejudice in the same year. See Young v. Terhune, ED CV 01-474-GLT(E). The Court must dismiss the present Petition in accordance with 28 U.S.C. section 2244(b). Section 2244(b) requires that a petitioner seeking to file a “second or successive” habeas petition first obtain Case 5:23-cv-00436-ODW-E Document 6 Filed 03/16/23 Page 2 of 3 Page ID #:39

authorization from the court of appeals. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (where the petitioner did not receive authorization from the 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”); see also Rule 9 of Rules Governing Section 2254 Cases in the United States District Courts. 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). 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 Dews v. Curry, 2008 WL 590476, at *3 (E.D. Cal. Feb. 29, 2008) (without Court of Appeals’ authorization, “this court lacks jurisdiction to consider /// /// /// /// 1 According to the docket of the United States Court of Appeals for the Ninth Circuit, available on the PACER database, no individual named Zuri Young has obtained an order from the Ninth Circuit permitting the filing of a successive habeas petition in this Court. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records). 2 Case 5:23-cv-00436-ODW-E Document □ Filed 03/16/23 Page 3 o0f3 Page ID #:40

the petition”) .’ For the reasons discussed above, the Petition is denied and 4] dismissed without prejudice. NN DATED: March 16, 2023. yt OTIS D. WRIGHT II UNITED STATES DISTRICT JUDGE 13] PRESENTED this 15th day 14] of March, 2023, by: [sf CHARLES F. EICK 17] UNITED STATES MAGISTRATE JUDGE 5 This Court has rebuffed several previous attempts by Petitioner to bring a “second or successive” habeas petition challenging his 1998 conviction and/or sentence. See Young v. State of California, ED CV 11-566-AHM(E); Young v. Horel, ED CV 08-454-AHM(E); Young v. Harrison, CV 04-9884-AHM(E).