Melvin Thomas v. M. Spearman

Filing 6

MEMORANDUM AND ORDER DISMISSING PETITION by Judge Audrey B. Collins. See document for details. (yb)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15

WESTERN DIVISION
MELVIN THOMAS,

)
)
Petitioner,
) Case No. CV 14-5144-ABC(AJW)
)
v.
)
)
M. SPEARMAN, WARDEN,
) MEMORANDUM AND ORDER
) DISMISSING PETITION
Respondent.
)
______________________________)

16
17

In 1996, petitioner was convicted of possession of cocaine, and

18

pursuant to the Three Strikes Law, he was sentenced to state prison

19

for a term of 25 years to life. [Petition at 2, 5].

20

petitioner filed a habeas corpus petition in this Court challenging

21

that 1996 conviction. See Case No. CV 03-517-RSWL(AJW). That petition

22

was dismissed with prejudice on July 28, 2003, because it was not

23

filed within the AEDPA’s one year limitation period.

24

not appeal that judgment.

25

second habeas corpus petition, again attempting to challenge his 1996

26

conviction.

27

judgment

28

Petitioner filed the current petition for a writ of habeas corpus on
June 27, 2014.

entered

Petitioner did

On February 5, 2010, petitioner filed a

Case No. CV 10-00857-RSWL(AJW).

was

In 2003,

dismissing

that

On February 26, 2010,

petition

as

successive.

Like the prior petitions, the current petition seeks

1

to

challenge

2

the

validity

of

petitioner’s

1996

conviction

and

sentence.

3

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).

5

A federal court must also dismiss a second or successive petition

6

raising a new ground unless the petitioner can show that (1) the claim

7

rests on a new, retroactive, constitutional right or (2) the factual

8

basis of the claim was not previously discoverable through due

9

diligence, and those new facts establish by clear and convincing

10

evidence

11

factfinder would have found the applicant guilty of the underlying

12

offense. 28 U.S.C. § 2244(b)(2)(A)-(B).

13

that

but

for

the

constitutional

error,

no

reasonable

It is not the district court, however, that decides whether a

14

successive petition may proceed.

15

successive application permitted by this section is filed in the

16

district court, the applicant shall move in the appropriate court of

17

appeals for an order authorizing the district court to consider the

18

application.”

28 U.S.C. § 2244(b)(3)(A).

19

the

Appeals,

20

successive petition. Burton v. Stewart, 549 U.S. 147, 152-153, 157

21

(2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001), cert.

22

denied, 538 U.S. 984 (2003).

23

Court

of

this

Court

Rather, “[b]efore a second or

lacks

Absent authorization from
jurisdiction

over

this

Petitioner’s prior federal petition was dismissed with prejudice

24

as untimely.

A dismissal with prejudice based on the statute of

25

limitation renders subsequent petitions successive under the AEDPA.

26

McNabb v. Yates, 576 F.3d 1028, 1029-1030 (9th Cir. 2009) (per

27

curiam). Because petitioner has not obtained leave from the Court of

28

Appeals to file a successive petition, this Court lacks jurisdiction
2

1

to consider it. Accordingly, the petition for a writ of habeas corpus

2

is dismissed for lack of jurisdiction.

3

IT IS SO ORDERED.

4
5

Dated: July 21, 2014

6
7

Audrey B. Collins
United States District Judge

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
3