John Abraham v. Daniel Paramo

Filing 3

ORDER DISMISSING PETITION AS SECOND OR SUCCESSIVE AND DENYING A CERTIFICATE OF APPEALABILITY by Judge George H Wu. (mz)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 JOHN ABRAHAM, ) ) Petitioner, ) ) v. ) ) DANIEL PARAMO, ) ) Respondent. ) ___________________________________) NO. CV 12-858-GW (MAN) ORDER DISMISSING PETITION AS SECOND OR SUCCESSIVE AND DENYING A CERTIFICATE OF APPEALABILITY 16 17 Petitioner, a California state prisoner, filed a habeas petition, 18 pursuant to 28 U.S.C. § 2254, on January 31, 2012 (“Petition”). The 19 Petition is the second habeas corpus petition filed by Petitioner in 20 this Court stemming from his 2001 state court conviction and sentence. 21 22 Under the Rules Governing Section 2254 Cases in the United States 23 District Courts, a habeas petition filed by a prisoner in state custody 24 “must” be summarily dismissed “[i]f it plainly appears from the petition 25 and any attached exhibits that the petitioner is not entitled to relief 26 in the district court. . . .” 27 reasons set forth below, the Petition must be, and is, DISMISSED as 28 second or successive, pursuant to 28 U.S.C. § 2244(b). Rule 4, 28 U.S.C. foll. § 2254. For the 1 BACKGROUND 2 3 On May 11, 2004, Petitioner filed a Section 2254 habeas petition in 4 Case No. CV 04-3296-GW (MAN) (the “Prior Action”). 5 petition arose out of the same 2001 state court conviction and sentence 6 on which the present Petition is based. 7 alleged Confrontation Clause and ineffective assistance of trial counsel 8 claims 9 attacking Petitioner’s Three Strikes sentence. attacking Petitioner’s conviction, The Prior Action The Prior Action petition as well as two claims The Prior Action was 10 resolved adversely to Petitioner on the merits, and habeas relief was 11 denied by Judgment entered on January 3, 2011. 12 appeal.1 Petitioner did not 13 14 A review of the dockets for the Ninth Circuit shows that Petitioner 15 has not sought or obtained leave to file a second or successive Section 16 2254 habeas petition arising out of his 2001 conviction and sentence. 17 18 DISCUSSION 19 20 State habeas petitioners generally may file only one federal habeas 21 petition challenging a particular state conviction and/or sentence. 22 See, e.g., 28 U.S.C. § 2244(b)(1) (courts must dismiss a claim presented 23 in a second or successive petition when that claim was presented in a 24 prior petition) and § 2244(b)(2) (with several exceptions not applicable 25 here, courts must dismiss a claim presented in a second or successive 26 1 27 28 Pursuant to Rule 201 of the Federal Rules of Evidence, the Court has taken judicial notice of its records and files, as well as the dockets for the United States Court of Appeals for the Ninth Circuit available electronically through the PACER system. 2 1 petition when that claim was not presented in a prior petition). “A 2 habeas petition is second or successive . . . if it raises claims that 3 were or could have been adjudicated on the merits” in an earlier Section 4 2254 petition. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). 5 6 In those instances when Section 2244(b) provides a basis for 7 pursuing a second or successive Section 2254 habeas petition, state 8 habeas petitioners seeking relief in this district court must first 9 obtain authorization from the Ninth Circuit before filing any such 10 second or successive petition. 28 U.S.C. § 2244(b)(3). The Ninth 11 Circuit “may authorize the filing of the second or successive [petition] 12 only if it presents a claim not previously raised that satisfies one of 13 the two grounds articulated in § 2242(b)(2).” 14 U.S. 147, 153, 127 S. Ct. 793, 796 (2007). Burton v. Stewart, 549 15 16 The instant Petition alleges a single claim. Petitioner challenges 17 his 18 insufficient to support the trial court’s finding that Petitioner had 19 sustained two prior “strikes” based on convictions he sustained in 20 Michigan, because the Michigan convictions were not brought and tried 21 separately. 22 therefore, was “illegal.” Three Strikes sentence on the ground that the evidence was Petitioner asserts that the sentence imposed in 2001, (Petition at 5 and attachment.) 23 24 By the Prior Action, Petitioner sought Section 2254 relief based on 25 the same 2001 conviction and sentence at issue here, and his habeas 26 petition was resolved adversely to him on its merits. 27 challenge to the validity of his Three Strikes Sentence does not rest on 28 newly-discovered evidence or a new 3 rule of His present constitutional law. 1 Accordingly, the current Petition is second or successive within the 2 meaning of Section 2244(b).2 3 4 As Petitioner has not obtained permission from the Ninth Circuit to 5 bring a second or successive petition, this Court lacks jurisdiction to 6 consider the instant Petition. 7 549 U.S. at 157, 127 S. Ct. at 799 (district court lacks jurisdiction to 8 consider the merits of a second or successive petition absent prior 9 authorization from the circuit court). Accordingly, IT IS ORDERED that: 10 the Petition is DISMISSED; and Judgment shall be entered dismissing this 11 action without prejudice. 28 U.S.C. § 2244(b); see also Burton, 12 13 In addition, pursuant to Rule 11(a) of the Rules Governing Section 14 2254 Cases in the United States District Courts, the Court has 15 considered whether a certificate of appealability is warranted in this 16 case. 17 85, 18 certificate of appealability is unwarranted, and thus, a certificate of 19 appealability is DENIED. See 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 484- 120 S. Ct. 1595, 1604 (2000). The Court concludes that a 20 21 IT IS SO ORDERED. 22 23 DATED: February 8, 2012 24 25 GEORGE H. WU UNITED STATES DISTRICT JUDGE 26 27 2 28 The instant Petition also untimely. 4 appears to be substantially 1 PRESENTED BY: 2 3 4 ______________________________ MARGARET A. NAGLE UNITED STATES MAGISTRATE JUDGE 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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