Warren Frank v. T. Virga

Filing 4

ORDER SUMMARILY DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF SUBJECT MATTER JURISDICTION by Judge Virginia A. Phillips: IT IS ORDERED that this action be summarily dismissed, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. Case Terminated. Made JS-6. (jm)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WARREN FRANK, JR.,

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Petitioner,

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v.

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(WARDEN) T. VIRGA,

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Respondent.

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No. CV 14-1768 VAP (FFM)
ORDER SUMMARILY DISMISSING
PETITION FOR WRIT OF HABEAS
CORPUS FOR LACK OF SUBJECT
MATTER JURISDICTION

On March 11, 2014, petitioner Warren Frank, Jr. (“Petitioner”) filed a

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Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”).1

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Petitioner challenges a conviction and sentence imposed by the Los Angeles

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County Superior Court in Case No. YA018996 in 1994.

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The Court takes judicial notice of its files with respect to a prior habeas

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petition (the “Prior Petition”) Petitioner constructively filed in this Court on or

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about June 26, 2007 (Case No. CV 07-4142 SGL (FFM)). The Court notes that

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A pro se prisoner’s relevant filings may be construed as filed on the date they
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26 Houston v. Lack, 487 U.S. 266, 108 S. Ct. 2379, 101 L. Ed. 2d 245 (1988).
Petitioner has attached a proof of service to the Petition stating that it was mailed
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on February 25, 2014. Therefore, the Petition may have been constructively filed
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the Prior Petition was directed to the same conviction and/or sentence sustained in

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Los Angeles County Superior Court Case No. YA018996. On September 28,

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2008, Judgment was entered in Case No. CV 07-4142 SGL (FFM) denying the

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Prior Petition as time-barred and dismissing the action with prejudice.

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The Petition now pending is governed by the provisions of the Antiterrorism

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and Effective Death Penalty Act of 1996 (Pub. L. 104-132, 110 Stat. 1214) (“the

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Act”) which became effective April 24, 1996. Section 106 of the Act amended 28

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U.S.C. § 2244(b) to read, in pertinent part, as follows:

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“(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

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shall 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

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application shall be dismissed unless --

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

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constitutional law, made retroactive to cases on collateral review by

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the Supreme Court, that was previously unavailable; or

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

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discovered previously through the exercise of due diligence; and

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

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the evidence as a whole, would be sufficient to establish by clear and

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convincing evidence that, but for constitutional error, no reasonable

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factfinder would have found the applicant guilty of the underlying

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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

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appropriate court of appeals for an order authorizing the district court

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to consider the application.”
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Petitioner’s prior federal habeas petition was denied on the ground that it

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was barred by the one-year period of limitation. A dismissal based on the statute

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of limitations is considered an adjudication on the merits for purposes of

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determining whether a subsequent petition is successive under the Act. Reyes v.

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Vaughn, 276 F. Supp. 2d 1027, 1029 (C.D. Cal. 2003); see Plaut v. Spendthrift

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Farm, 514 U.S. 211, 228, 115 S. Ct. 1447, 131 L. Ed. 2d 328 (1995) (“The rules

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of finality, both statutory and judge made, treat a dismissal on

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statute-of-limitations grounds the same way they treat a dismissal for failure to

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state a claim, for failure to prove substantive liability, or for failure to prosecute:

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as a judgment on the merits.”) (citing Fed. R. Civ. P. 41(b) and United States v.

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Oppenheimer, 242 U.S. 85, 87–88, 37 S. Ct. 68, 61 L. Ed. 161 (1916)); Ellingson

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v. Burlington Northern Inc., 653 F.2d 1327, 1330 n.3 (9th Cir. 1981) (“A

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judgment based on the statute of limitations is ‘on the merits.’”) (citing Mathis v.

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Laird, 457 F.2d 926, 927 (5th Cir. 1972)).

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Therefore, because the Petition now pending challenges the same conviction

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as Petitioner’s prior habeas petition in Case No. CV 07-4142 SGL (FFM), it

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constitutes a second and/or successive petition within the meaning of 28 U.S.C. §

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2244(b). To the extent Petitioner seeks to pursue the same claims he previously

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asserted, the Petition is barred by the provisions of 28 U.S.C. § 2244(b)(1). To

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the extent Petitioner seeks to pursue claims not previously asserted, it was

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incumbent on him under § 2244(b)(3)(A) to secure an order from the Ninth

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Circuit authorizing the District Court to consider the Petition, prior to his filing of

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it in this Court. Petitioner’s failure to secure such an order from the Ninth Circuit

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deprives the Court of subject matter jurisdiction.

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For the foregoing reasons,

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IT IS ORDERED that this action be summarily dismissed, pursuant to Rule

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4 of the Rules Governing Section 2254 Cases in the United States District Courts.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: April 7, 2014

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__________________________
VIRGINIA A. PHILLIPS
United States District Judge

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Presented by:

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/S/ FREDERICK F. MUMM
FREDERICK F. MUMM
United States Magistrate Judge

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