Shannon Jacobs v. Standing Director of CDCR

Filing 3

MEMORANDUM AND ORDER DISMISSING PETITION, 1 by Judge Christina A. Snyder. IT IS SO ORDERED. (mz)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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WESTERN DIVISION

10 SHANNON JACOBS,
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) Case No. CV 16-1147 CAS (AJW)
)
Petitioner,
) MEMORANDUM AND ORDER
) DISMISSING PETITION
v.
)
)
STANDING DIRECTOR OF CDCR,
)
)
Respondent.
)
_________________________________)

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On September 17, 2002, petitioner pleaded no contest to two counts

17 of second degree murder and was sentenced to state prison for two terms
18 of fifteen years to life. [Petition at 2].
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On November 1, 2005, petitioner filed a habeas corpus petition in

20 this Court challenging his 2002 conviction. Case No. CV 05-853721 GAF(AJW). The petition was dismissed as untimely on June 27, 2006.
22 Petitioner’s requests for a certificate of appealability were denied by
23 both this Court and the Court of Appeals.
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Petitioner

filed

two

additional

petitions

in

this

Court

25 challenging his 2002 conviction, both of which were dismissed for lack
26 of jurisdiction. Case Nos. CV 09-0070-GAF(AJW) and 12-8368-GAF(AJW).
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Petitioner filed the current petition for a writ of habeas corpus

28 on February 18, 2016. The petition, which again challenges petitioner’s

1 2002 conviction, is successive. See McNabb v. Yates, 576 F.3d 1028,
2 1029-1030 (9th Cir. 2009) (per curiam) (holding that a dismissal with
3 prejudice based upon the statute of limitation renders subsequent
4 petitions successive under the AEDPA).
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“Before a second or successive application permitted by this

6 section is filed in the district court, the applicant shall move in the
7 appropriate court of appeals for an order authorizing the district
8 court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Absent
9 authorization from the Court of Appeals, this Court lacks jurisdiction
10 over a successive petition. See Magwood v. Patterson, 561 U.S. 320,
11 330-331 (2010); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir.
12 2001), cert. denied, 538 U.S. 984 (2003).
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Because petitioner has not obtained leave from the Court of

14 Appeals to file a successive petition,1 the petition is dismissed for
15 lack of jurisdiction.
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It is so ordered.2

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Dated: February 23, 2016
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Christina A. Snyder
United States District Judge

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Petitioner has filed two applications for authorization to file a
successive petition, both of which were denied by the Court of Appeals.
Ninth Circuit Case Nos. 10-73769 and 13-71089.
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Ninth Circuit Rule No. 22-3(a) provides that “[i]f a second or
successive petition or motion, or an application for authorization to
file such a petition or motion, is mistakenly submitted to the district
court, the district court shall refer it to the court of appeals.”
Because the circumstances indicate that petitioner intentionally filed
this action in this Court, not that he did so mistakenly, Rule 22-3(a)
is inapplicable. Nevertheless, the Clerk is directed to mail petitioner
a copy of Ninth Circuit Form 12 so that petitioner may file an
application for leave to file a second or successive petition in the
Court of Appeals.

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