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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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RODNEY OWENS,

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Petitioner,

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vs.
KELLY HARRINGTON, Warden,

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Respondent.

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CASE NO. CV 11-08477 GHK (RZ)
ORDER SUMMARILY DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS WITHOUT PREJUDICE

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This habeas petition is successive and lacks the required Court of Appeals

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authorization for such a petition. As a result, this Court will dismiss it summarily for lack

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of jurisdiction to entertain it.

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Rule 4 of the Rules Governing Section 2254 Cases in the United States

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District Courts provides that “[i]f it plainly appears from the face of the petition and any

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exhibits annexed to it that the petitioner is not entitled to relief in the district court, the

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judge shall make an order for its summary dismissal and cause the petitioner to be

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notified.”
Section 2244 of Title 28, part of the Antiterrorism and Effective Death Penalty

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Act, requires that the district court dismiss most successive habeas corpus petitions:

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(b)(1)

A claim presented in a second or successive habeas corpus

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application under section 2254 that was presented in a prior application shall

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be dismissed.

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(2) A claim presented in a second or successive habeas corpus

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application under section 2254 that was not presented in a prior application

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shall be dismissed unless –

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(A) the applicant shows that the claim relies on a new rule

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of constitutional law, made retroactive to cases on collateral

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review by the Supreme Court, that was previously unavailable;

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or

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(B) (i) the factual predicate for the claim could not have

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been discovered previously through the exercise of due

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diligence; and

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(ii) the facts underlying the claim, if proven and viewed

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in light of the evidence as a whole, would be sufficient to

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establish by clear and convincing evidence that, but for

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constitutional error, no reasonable factfinder would have found

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the applicant guilty of the underlying offense.

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(3)(A) Before a second or successive application permitted by this

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section is filed in the district court, the applicant shall move in the appropriate

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court of appeals for an order authorizing the district court to consider the

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application.

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In Felker v. Turpin, 518 U.S. 651, 656-57, 116 S. Ct. 2333, 135 L. Ed. 2d 827

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(1996), the Supreme Court noted that this statute transferred the screening function for

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successive petitions from the district court to the court of appeals. This provision has been

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held to be jurisdictional; the district court cannot entertain a successive petition without

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prior approval from the Court of Appeals. Cooper v. Calderon, 274 F.3d 1270, 1274 (9th
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Cir. 2001). The district court therefore either must dismiss a successive petition for lack

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of jurisdiction, or it may transfer the action, in the interest of justice, to the court where the

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action properly could have been brought. 28 U.S.C. § 1631; Pratt v. United States, 129

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F.3d 54, 57 (1st Cir. 1997).

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In the Petition before the Court, Petitioner Rodney Owens attacks his 1996

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convictions of armed carjacking and other crimes and/or the sentence imposed. He

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previously challenged that conviction on habeas in this Court, however, and the Court

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denied relief on the merits and dismissed that action with prejudice. See docket in Owens

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v. Garcia, No. CV 98-10652 DT (RZ) (Judgment filed September 23, 1999). Petitioner has

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not obtained Ninth Circuit authorization, as is required before he properly may file another

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habeas petition in this Court. No factors appear which make it preferable to transfer this

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case to the Court of Appeals, rather than dismissing it.

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Accordingly, IT IS ORDERED that the Petition is dismissed.

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DATED: October 25, 2011

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GEORGE H. KING
UNITED STATES DISTRICT JUDGE

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