Kirell Taylor v. Michael D Stainer

Filing 6

ORDER SUMMARILY DISMISSING SUCCESSIVE HABEAS PETITION, 1 by Judge Margaret M. Morrow. IT IS ORDERED that the Petition is dismissed.Case Terminated. Made JS-6. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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KIRELL TAYLOR,

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Petitioner,

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vs.
MICHAEL D. STAINER, Warden,

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Respondents.

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CASE NO. CV 12-9087 MMM (RZ)
ORDER SUMMARILY DISMISSING
SUCCESSIVE HABEAS PETITION

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For at least the third time, Kirell Taylor presents a successive habeas petition

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that lacks the required Court of Appeals authorization for such a petition. The Court will

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dismiss the petition and the action summarily for lack 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.”

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Section 2244 of Title 28, part of the Antiterrorism and Effective Death Penalty
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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Petitioner attacks his 2001 conviction of several grave charges, including

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felony murder, arising from a 1999 home-invasion robbery. He previously challenged that

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sentence on habeas in this Court, however, and the Court denied relief on the merits and

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dismissed that action with prejudice. See docket in Taylor v. Pliler, No. CV 03-6540

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MMM (CT) (Judgment filed April 5, 2004). He filed two more successive petitions after

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that dismissal and before the current action, having restyled his name first to “Kirell Bettis”

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and then “Sadiq Abdul.” See dockets in Bettis v. Tillie-Moore, No. CV 09-0265 MMM

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(CT) and Bettis v. Haws, No. CV 09-8970 MMM (CT). The Court promptly dismissed

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both as successive. This action, in which Petitioner again refers to himself with the name

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under which he was convicted, merits the same fate.

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Petitioner’s current petition, like the two prior successive petitions, does not

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enjoy the required Ninth Circuit authorization for successive petitions. No factors appear

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which make it preferable to transfer this case to the Court of Appeals, rather than

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dismissing it.

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Accordingly, IT IS ORDERED that the Petition is dismissed.

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DATED: November 7, 2012

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MARGARET M. MORROW
UNITED STATES DISTRICT JUDGE

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