Reginald Val Davin v. Domingo Uribe, Jr.

Filing 30

ORDER OF DISMISSAL by Judge Ronald S.W. Lew. The Petition is denied and dismissed without prejudice. Case Terminated. Made JS-6. (sp)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Petition challenges the criminal judgment in Los Angeles Superior Court case number YA069114 (Petition at 2 & Exhibits A, B). Petitioner previously challenged this same judgment in a prior habeas corpus petition filed in this Court. RSWL(E). See Davin v. Baca, CV 08-2877Petitioner filed a "Petition for Writ of Habeas Corpus by a Person in State Custody" on June 30, 2009. on February 17, 2010. Respondent filed an Answer REGINALD VAL DAVIN, ) ) Petitioner, ) ) v. ) ) DOMINGO URIBE, JR., Warden, ) ) Respondent. ) ) ______________________________) NO. CV 09-4706-RSWL(E) UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA ORDER OF DISMISSAL Petitioner filed a Traverse on April 5, 2010. On August 5, 2008, this Court entered Judgment in Davin v. Baca, CV 08-2877-RSWL, denying and dismissing the prior petition on the merits with prejudice. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The Court must dismiss the present Petition in accordance with 28 U.S.C. section 2244(b) (as amended by the "Antiterrorism and Effective Death Penalty Act of 1996"). Section 2244(b) requires that a petitioner seeking to file a "second or successive" habeas petition first obtain authorization from the court of appeals. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive authorization from Court of Appeal 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"). 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., Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. Mar. 6, 2008); Miles v. Mendoza-Powers, 2007 WL 4523987, at *2-3 (E.D. Cal. Dec. 19, 2007). Petitioner evidently has not yet obtained authorization from the Ninth Circuit Court of Appeals. the present Petition. /// /// /// Consequently, this Court cannot entertain See Burton v. Stewart, 549 U.S. at 157.1 Respondent's Answer does not argue that the Petition is "second or successive." In fact, the Answer states that "[t]he Petition does not appear to be successive" (Answer at 1). Respondent's position in this regard is irrelevant, however. The absence of Circuit Court authorization to file a "second or successive" petition is a jurisdictional defect that cannot be waived in District Court proceedings. See, e.g., Torres v. Senkowski, 316 F.3d 147, 151 (2nd Cir. 2003). 2 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For all of the foregoing reasons, the Petition is denied and dismissed without prejudice. LET JUDGMENT BE ENTERED ACCORDINGLY. DATED: 4-12-10. _____________________________________ RONALD S. W. LEW SENIOR UNITED STATES DISTRICT JUDGE PRESENTED this 6th day of April, 2010, by: /S/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 3

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