Noel Rodriguez v. G. J. Janda

Filing 6

MEMORANDUM AND ORDER DISMISSING PETITION, 1 by Judge Dale S. Fischer. (mz)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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11 NOEL RODRIGUEZ,
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) Case No. CV 14-984-DSF(AJW)
)
Petitioner,
) MEMORANDUM AND ORDER
) DISMISSING PETITION
v.
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)
G.J. JANDA, Warden,
)
)
Respondent.
)
_________________________________)

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On October 15, 1997, petitioner was convicted of first degree

18 murder.

[Petition at 2].

The California Court of Appeal affirmed

19 petitioner’s conviction on March 16, 1999, and the California Supreme
20 Court denied his petition for review on April 21, 1999. [Petition at 221 3].
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On August 17, 2011, petitioner filed a petition for a writ of

23 habeas corpus in this Court. Case No. CV 11-6759-DSF(AJW).

Judgment

24 dismissing the petition as untimely was entered on March 5, 2012.
25 Petitioner’s requests for a certificate of appealability were denied
26 both by this Court and by the Court of Appeals.
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Petitioner filed the present petition for a writ of habeas corpus

28 on February 7, 2014.

Like the petition filed in Case No. CV 11-6759-

1 DSF(AJW), this petition challenges petitioner’s 1997 murder conviction.
2 [Petitioner at 2].
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A federal court must dismiss a second or successive petition that

4 raises the same grounds as a prior petition. 28 U.S.C. § 2244(b)(1). A
5 federal court also must dismiss a second or successive petition raising
6 a new ground unless the petitioner can show that (1) the claim rests on
7 a new, retroactive, constitutional right or (2) the factual basis of
8 the claim was not previously discoverable through due diligence, and
9 those new facts establish by clear and convincing evidence that but for
10 the constitutional error, no reasonable factfinder would have found the
11 applicant

guilty

of

the

underlying

offense.

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U.S.C.

§

12 2244(b)(2)(A)-(B). It is not the district court, however, that decides
13 whether a second or successive petition may proceed. Rather, “[b]efore
14 a second or successive application permitted by this section is filed
15 in the district court, the applicant shall move in the appropriate
16 court of appeals for an order authorizing the district court to
17 consider

the

application.”

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U.S.C.

§

2244(b)(3)(A).

Absent

18 authorization from the Court of Appeals, this Court lacks jurisdiction
19 over this second or successive petition. Burton v. Stewart, 549 U.S.
20 147, 157 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir.
21 2001), cert. denied, 538 U.S. 984 (2003).
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23 as

Petitioner’s first federal petition was dismissed with prejudice
untimely.

A

dismissal

with

prejudice

under

the

statute

of

24 limitation renders subsequent petitions successive under the AEDPA.
25 McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009) (per curiam).
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1 Because petitioner has not obtained leave from the Court of Appeals to
2 file a successive petition, the petition for a writ of habeas corpus is
3 dismissed for lack of jurisdiction.
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IT IS SO ORDERED.

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6 Dated: March 13, 2014
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Dale S. Fischer
United States District Judge

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

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NOEL RODRIGUEZ,
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) Case No. CV 14-984-DSF(AJW)
)
Petitioner,
)
) JUDGMENT
v.
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G.J. JANDA, Warden,
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)
Respondent.
)
_________________________________)

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It is hereby adjudged that the petition for a writ of habeas
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corpus is dismissed for lack of jurisdiction.
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Dated: ___________________
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____________________________
Dale S. Fischer
United States District Judge