Barnard McGaughy v. E Valenzuela

Filing 6

ORDER SUMMARILY DISMISSING ACTION WITHOUT PREJUDICE AND DENYING CERTIFICATE OF APPEALABILITY by Judge George H. Wu: IT IS ORDERED THAT this action be SUMMARILY DISMISSED WITHOUT PREJUDICE for lack of jurisdiction. IT IS FURTHER ORDERED THAT a Certificate of Appealability be DENIED. (kh)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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BARNARD MCGAUGHY,
Petitioner,

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v.

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E. VALENZUELA,
Respondent.

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Case No. CV 15-2294 GW (JCG)
ORDER SUMMARILY DISMISSING
ACTION WITHOUT PREJUDICE AND
DENYING CERTIFICATE OF
APPEALABILITY

On March 27, 2015, petitioner Barnard McGaughy1 (“Petitioner”), a California

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prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus (“Petition”).

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[Dkt. No. 1.] Notably, it is his third federal petition challenging his 2002 state court

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conviction for torture, assault, and robbery. What’s more, Petitioner filed the Petition

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even after the Ninth Circuit denied his request for permission to file a “second or

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successive” petition. Accordingly, and for the reasons discussed below, the Court

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finds that the Petition is an unauthorized “second or successive” petition, and

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summarily dismisses this action without prejudice for lack of jurisdiction. See 28

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U.S.C. § 2244(b).

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Petitioner is also known as Barnard McGauthy. [See C.D. Cal. Case No. CV 07-1596 GW
(FMO), Dkt. No. 26, at 1 n.1.]

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By way of background, Petitioner first challenged his conviction in 2007. [See

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C.D. Cal. Case No. CV 07-1596 GW (FMO), Dkt. No. 1.] That petition was denied.

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[See id., Dkt No. 26, 30, 31.]
On May 22, 2013, Petitioner filed a second petition challenging the same

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conviction. [See C.D. Cal. Case No. 13-3656 GW (JCG), Dkt. No. 1.] On July 12,

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2013, this Court dismissed that action for lack of jurisdiction, on the grounds that

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Petitioner had not obtained authorization to file a “second or successive” petition. [See

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id., Dkt. No. 4, at 3.] At that time, the Court explained that “it was incumbent on

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Petitioner under § 2244(b)(3)(A) to secure an order from the Ninth Circuit authorizing

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this Court to consider the instant Petition prior to its filing.” [Id.]

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On August 9, 2013, Petitioner filed an application with the Ninth Circuit

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requesting permission to file a “second or successive” petition. [See Ninth Cir. Case

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No. 13-72791, Dkt. No. 1.] On September 27, 2013, the Ninth Circuit denied

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Petitioner’s application. [See id., Dkt. No. 2.]
On March 27, 2015, Petitioner filed the instant petition, in which he again

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challenges the same conviction. (Pet. at 2.)
However, Petitioner has again failed to obtain the Ninth Circuit’s authorization

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to file a “second or successive” petition. See 28 U.S.C. § 2244(b).
Accordingly, the Court must dismiss this third action for lack of jurisdiction.

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See id.

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Additionally, for the reasons stated above, the Court finds that Petitioner has not

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shown that reasonable jurists would find it debatable whether this Court was correct in

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its procedural ruling. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court

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thus declines to issue a certificate of appealability.

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For the foregoing reasons, IT IS ORDERED THAT this action be

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SUMMARILY DISMISSED WITHOUT PREJUDICE for lack of jurisdiction,

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

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District Courts.

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IT IS FURTHER ORDERED THAT a Certificate of Appealability be
DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: May 4, 2015

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HON. GEORGE H. WU
UNITED STATES DISTRICT JUDGE

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