Damond Edward Swanigan v. M.D. Biter

Filing 3

OPINION AND ORDER ON PETITION FOR WRIT OF HABEAS CORPUS by Judge R. Gary Klausner. On September 10, 2014, Petitioner filed a Petition for Writ of Habeas Corpus by a Person in State Custody ("Petition") pursuant to 28 U.S.C. § 2254. IT IS HEREBY ORDERED that Judgment be entered summarily dismissing the Petition and action for lack of subject matter jurisdiction. (mp)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12

DAMON EDWARD SWANIGAN,
Petitioner,

13
14
15

v.
M. D. BITER, Warden
Respondent.

16
17
18

)
)
)
)
)
)
)
)
)
)
)
)

NO. CV 14-7055-RGK (AGR)

OPINION AND ORDER ON
PETITION FOR WRIT OF
HABEAS CORPUS

On September 10, 2014, Petitioner filed a Petition for Writ of Habeas

19

Corpus by a Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254.

20

Petitioner challenges his 1998 conviction in Los Angeles County Superior Court.

21

(Petition at 2.)

22

I.

23

PROCEDURAL BACKGROUND

24
25
26
27
28

Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records
in Petitioner’s prior federal habeas corpus actions in this district: Swanigan v.

1

Pliler, CV 01-2485 RSWL (SGL) (“Swanigan I”)1; Swanigan v. Pliler, CV 02-2355

2

RSWL (SGL) (“Swanigan II”);2 Swanigan v. Pliler, CV 02-6784 ABC (SGL)

3

(“Swanigan III”), and Swanigan v. Small, CV 08-4954-RSWL (AGR) (“Swanigan

4

IV”).
On August 29, 2002, in Swanigan III, Petitioner filed a petition for writ of

5
6

habeas corpus by a person in state custody. Id., Dkt. No. 1. Petitioner

7

challenged his 1998 conviction for two counts of robbery with enhancements.

8

(Id., Dkt. No. 10 at 1.)
On November 20, 2002, the Court entered Judgment denying the petition

9
10

in Swanigan III and dismissing the action with prejudice as barred by the one-

11

year statute of limitations. Id., Dkt. Nos. 10-11. On December 19, 2002,

12

Petitioner filed a Notice of Appeal. Id., Dkt. No. 12. On July 30, 2003, the Ninth

13

Circuit denied Petitioner’s request for a certificate of appealability. Id., Dkt. No.

14

21.

15

On August 6, 2008, in Swanigan IV, the Court summarily dismissed the

16

petition for lack of subject matter jurisdiction because it was a second or

17

successive petition. (Id., Dkt. No. 3.) Petitioner did not appeal.

18

II.

19

DISCUSSION

20

The Petition was filed after enactment of the Antiterrorism and Effective

21

Death Penalty Act of 1996 (“AEDPA”). Therefore, the Court applies the AEDPA

22

in reviewing the Petition. Lindh v. Murphy, 521 U.S. 320, 336, 117 S. Ct. 2059,

23

138 L. Ed. 2d 481 (1997).

24
25
26
27
28

1

On April 6, 2001, the Court dismissed Swanigan I without prejudice
pursuant to Swanigan’s motion for voluntary dismissal so he could exhaust his
grounds for relief.
2

On May 31, 2002, the Court dismissed Swanigan II without prejudice.
2

1

The AEDPA provides, in pertinent part: “Before a second or successive

2

application permitted by this section is filed in the district court, the applicant shall

3

move in the appropriate court of appeals for an order authorizing the district court

4

to consider the application.” 28 U.S.C. § 2244(b)(3)(A). A district court does not

5

have jurisdiction to consider a “second or successive” petition absent

6

authorization from the Ninth Circuit. Burton v. Stewart, 549 U.S. 147, 152, 127 S.

7

Ct. 793, 166 L. Ed. 2d 628 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th

8

Cir. 2001) (“When the AEDPA is in play, the district court may not, in the absence

9

of proper authorization from the court of appeals, consider a second or

10
11

successive habeas application.”) (citation and quotation marks omitted).
Here, the Petition is a second or successive petition that challenges the

12

same custody imposed by the same judgment of the state court as in Swanigan

13

III. (Petition at 2.) It plainly appears from the face of the Petition that Petitioner

14

has not received authorization from the Ninth Circuit Court of Appeals to file the

15

Petition. This Court must, therefore, dismiss the Petition as a second or

16

successive petition for which it lacks jurisdiction under 28 U.S.C. § 2244(b)(3).

17

See Burton, 127 S. Ct. at 796-98.

18

Rule 4 of the Rules Governing Section 2254 Cases in the United States

19

Courts provides that “[i]f it plainly appears from the face of the petition and any

20

attached exhibits that the petitioner is not entitled to relief in the district court, the

21

judge must dismiss the petition and direct the clerk to notify the petitioner.” Here,

22

summary dismissal is warranted.

23
24
25
26
27
28

3

1

III.

2

ORDER

3
4

IT IS HEREBY ORDERED that Judgment be entered summarily dismissing
the Petition and action for lack of subject matter jurisdiction.

5
6
7
8

DATED: September 18, 2014

_______________________________
R. GARY KLAUSNER
United States District Judge

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

4