Rodney Owens v. Kelly Harrington

Filing 4

ORDER DISMISSING CASE WITHOUT PREJUDICE by Judge George H. King. Re Petition for Writ of Habeas Corpus (2254) 1 . (See document for details). Case Terminated. Made JS-6. (ib)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RODNEY OWENS, 12 Petitioner, 13 14 vs. KELLY HARRINGTON, Warden, 15 Respondent. ) ) ) ) ) ) ) ) ) ) CASE NO. CV 11-08477 GHK (RZ) ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS WITHOUT PREJUDICE 16 17 This habeas petition is successive and lacks the required Court of Appeals 18 authorization for such a petition. As a result, this Court will dismiss it summarily for lack 19 of jurisdiction to entertain it. 20 Rule 4 of the Rules Governing Section 2254 Cases in the United States 21 District Courts provides that โ€œ[i]f it plainly appears from the face of the petition and any 22 exhibits annexed to it that the petitioner is not entitled to relief in the district court, the 23 judge shall make an order for its summary dismissal and cause the petitioner to be 24 notified.โ€ Section 2244 of Title 28, part of the Antiterrorism and Effective Death Penalty 25 26 Act, requires that the district court dismiss most successive habeas corpus petitions: 27 /// 28 1 (b)(1) A claim presented in a second or successive habeas corpus 2 application under section 2254 that was presented in a prior application shall 3 be dismissed. 4 (2) A claim presented in a second or successive habeas corpus 5 application under section 2254 that was not presented in a prior application 6 shall be dismissed unless โ€“ 7 (A) the applicant shows that the claim relies on a new rule 8 of constitutional law, made retroactive to cases on collateral 9 review by the Supreme Court, that was previously unavailable; 10 or 11 (B) (i) the factual predicate for the claim could not have 12 been discovered previously through the exercise of due 13 diligence; and 14 (ii) the facts underlying the claim, if proven and viewed 15 in light of the evidence as a whole, would be sufficient to 16 establish by clear and convincing evidence that, but for 17 constitutional error, no reasonable factfinder would have found 18 the applicant guilty of the underlying offense. 19 (3)(A) Before a second or successive application permitted by this 20 section is filed in the district court, the applicant shall move in the appropriate 21 court of appeals for an order authorizing the district court to consider the 22 application. 23 . . . 24 In Felker v. Turpin, 518 U.S. 651, 656-57, 116 S. Ct. 2333, 135 L. Ed. 2d 827 25 (1996), the Supreme Court noted that this statute transferred the screening function for 26 successive petitions from the district court to the court of appeals. This provision has been 27 held to be jurisdictional; the district court cannot entertain a successive petition without 28 prior approval from the Court of Appeals. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th -2- 1 Cir. 2001). The district court therefore either must dismiss a successive petition for lack 2 of jurisdiction, or it may transfer the action, in the interest of justice, to the court where the 3 action properly could have been brought. 28 U.S.C. ยง 1631; Pratt v. United States, 129 4 F.3d 54, 57 (1st Cir. 1997). 5 In the Petition before the Court, Petitioner Rodney Owens attacks his 1996 6 convictions of armed carjacking and other crimes and/or the sentence imposed. He 7 previously challenged that conviction on habeas in this Court, however, and the Court 8 denied relief on the merits and dismissed that action with prejudice. See docket in Owens 9 v. Garcia, No. CV 98-10652 DT (RZ) (Judgment filed September 23, 1999). Petitioner has 10 not obtained Ninth Circuit authorization, as is required before he properly may file another 11 habeas petition in this Court. No factors appear which make it preferable to transfer this 12 case to the Court of Appeals, rather than dismissing it. 13 Accordingly, IT IS ORDERED that the Petition is dismissed. 14 15 DATED: October 25, 2011 16 17 18 GEORGE H. KING UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 -3-

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