Bruce Carol Wells v. Amy Miller et al

Filing 6

ORDER OF DISMISSAL by Judge Dean D. Pregerson. The Petition is denied and dismissed without prejudice. (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BRUCE CAROL WELLS, JR.,

) NO. CV 14-3213-DDP(E)
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Petitioner,
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v.
) ORDER OF DISMISSAL
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AMY MILLER, Warden, et al.,
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Respondents.
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______________________________)

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On April 14, 2014, Petitioner filed a “Petition for Writ of

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Habeas Corpus Under 28 U.S.C. § 2254 by a Person in State Custody”

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(“the Petition”) in the United States District Court for the Southern

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District of California.

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District transferred the Petition to the Central District of

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California.

By Order filed April 18, 2014, the Southern

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The Petition challenges Petitioner’s conviction and sentence in

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Los Angeles Superior Court case number MA 013226 for infliction of

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corporal injury on a spouse or cohabitant and mayhem (Petition at 1-

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2).

Petitioner previously challenged this same conviction in a prior

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habeas corpus petition filed in this Court.

See Wells v. Small, CV

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00-2051-DDP(E).

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Wells v. Small, CV 00-2051-DDP(E), denying and dismissing the prior

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petition on the merits with prejudice.

On August 29, 2000, this Court entered Judgment in

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The Court must dismiss the present Petition in accordance with

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28 U.S.C. section 2244(b) (as amended by the “Antiterrorism and

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Effective Death Penalty Act of 1996”).

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a petitioner seeking to file a “second or successive” habeas petition

Section 2244(b) requires that

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first obtain authorization from the Court of Appeals.

See Burton v.

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Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive

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authorization from Court of Appeals before filing second or successive

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petition, “the District Court was without jurisdiction to entertain

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[the petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir.

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2000) (“the prior-appellate-review mechanism set forth in § 2244(b)

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requires the permission of the court of appeals before ‘a second or

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successive habeas application under § 2254’ may be commenced”).

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petition need not be repetitive to be “second or successive,” within

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the meaning of 28 U.S.C. section 2244(b).

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Calderon, 151 F.3d 918, 920-21 (9th Cir.), cert. denied, 524 U.S. 965

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(1998); Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal.

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Mar. 6, 2008).

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authorization from the Ninth Circuit Court of Appeals (see Petition,

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See, e.g., Thompson v.

Petitioner evidently has not yet obtained

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p. 5).1

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Petition.

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Gen. of Calif., 471 Fed. App’x 571, 571 (9th Cir. 2012) (if a

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petitioner fails to obtain authorization from the Court of Appeals to

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file a second or successive petition, “the district court lacks

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jurisdiction to consider the petition and should dismiss it.”)

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(citation omitted).

Consequently, this Court cannot entertain the present
See Burton v. Stewart, 549 U.S. at 157; Remsen v. Att’y

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For all of the foregoing reasons, the Petition is denied and
dismissed without prejudice.

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: May 14, 2014.

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___________________________________
DEAN D. PREGERSON
UNITED STATES DISTRICT JUDGE

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PRESENTED this 29th day of

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April, 2014, by:

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_____________/S/_________________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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The Court takes judicial notice of the docket of the
United States Court of Appeals for the Ninth Circuit, available
on the PACER database. See Mir v. Little Company of Mary Hosp.,
844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice
of court records). The Ninth Circuit’s docket does not show that
any individual named Bruce Wells has obtained any order from the
Ninth Circuit permitting the filing of a second or successive
habeas petition in this Court.
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