Tommie Lynex v. California Department of Corrections and Rehabilitation et al

Filing 4

ORDER OF DISMISSAL by Judge David O. Carter. Petition is denied and dismissed with prejudice. (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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TOMMIE LYNEX,

) NO. CV 14-4834-DOC(E)
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Petitioner,
)
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v.
) ORDER OF DISMISSAL
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CALIFORNIA DEPARTMENT OF
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CORRECTIONS AND
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REHABILITATION, et al.
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)
Respondents.
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______________________________)

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On June 23, 2014, Petitioner, a state prisoner, filed a “Petition

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for a Writ of Habeas Corpus Under 28 U.S.C. § 2241” (“the Petition”).

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The Petition challenges the Petitioner’s continuing detention in state

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prison, which is the product of Petitioner’s conviction and sentence

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in Los Angeles Superior Court case No. PA034126 (Petition at 2-7(g)).

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Petitioner previously challenged this same conviction and sentence in

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a prior habeas corpus petition filed in this Court.

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Garcia, CV 03-5742-AHS(SGL).

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Judgment in Lynex v. Garcia, CV 03-5742-AHS(SGL), denying and

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dismissing the prior petition on the merits with prejudice.

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See Lynex v.

On August 25, 2004, this Court entered

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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

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first obtain authorization from the Court of Appeals.

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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.

Section 2244(b) requires that

See Burton v.

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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.1

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this Court cannot entertain the present Petition.

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Stewart, 549 U.S. at 157; Remsen v. Att’y Gen. of Calif., 471 Fed.

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App’x 571, 571 (9th Cir. 2012) (if a petitioner fails to obtain

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authorization from the Court of Appeals to file a second or successive

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petition, “the district court lacks jurisdiction to consider the

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See, e.g., Thompson v.

Petitioner evidently has not yet obtained
Consequently,

See Burton v.

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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 Tommie Lynex 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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petition and should dismiss it.”) (citation omitted).

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The fact that Petitioner styled the present Petition as a

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petition under section 2241 rather than 2254 cannot change the result

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herein.

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prisoner to challenge the constitutionality of his detention.”

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v. Lambert, 370 F.3d 1002, 1007 (9th Cir.), cert. denied, 543 U.S. 991

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(2004), overruled on other grounds, Hayward v. Marshall, 603 F.3d 546

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(9th Cir. 2010), abrogated on other grounds, Swarthout v. Cooke, 131

Section 2254 “is the exclusive avenue for state court
White

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S. Ct. 859 (2011).

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avoid the limitations imposed on successive petitions by styling his

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petition as one pursuant to 28 U.S.C. § 2241 rather than 28 U.S.C. §

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2254.”

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denied, 528 U.S. 1178 (2000); accord Greenawalt v. Stewart, 105 F.3d

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1287, 1288 (9th Cir.), cert. denied, 519 U.S. 1103 (1997); Stanton v.

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Law, 2008 WL 4679085, at *1-2 (D. Mont. Oct. 22, 2008), aff’d, 404

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Fed. App’x 158 (9th Cir. 2010).

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Consequently, “a state habeas petitioner may not

Moore v. Reno, 185 F.3d 1054, 1055 (9th Cir. 1999), cert.

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

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: July 21, 2014.

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___________________________________
DAVID O. CARTER
UNITED STATES DISTRICT JUDGE

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PRESENTED this 9th day of

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July, 2014, by:

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

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