Jose M Reyes v. Dean Borders
MEMORANDUM AND ORDER DISMISSING CASE by Judge Consuelo B. Marshall, re Petition for Writ of Habeas Corpus (2254) 1 . Because petitioner has notobtained leave from the Court of Appeals, this successive petition isdismissed for lack of jurisdiction. (see document for further details) (klg)
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
11 JOSE M. REYES,
) Case No. CV 16-6146-CBM(AJW)
) MEMORANDUM AND ORDER
) DISMISSING PETITION
In 1989, petitioner was convicted and sentenced in the Los Angeles
18 Superior Court. [Petition at 2].
On April 18, 1995, petitioner filed a petition for a writ of
20 habeas corpus in this Court challenging his 1989 conviction. Case No.
22 September 26, 2005, petitioner filed a second habeas corpus petition in
23 this Court, which was denied as successive. Case No. CV 05-697024 CBM(CT). The Ninth Circuit subsequently denied petitioner’s request for
25 leave to file a successive petition.
Petitioner filed the current petition for a writ of habeas corpus
27 on August 16, 2016. The petition again challenges petitioner’s 1989
“Before a second or successive application permitted by this
2 section is filed in the district court, the applicant shall move in the
3 appropriate court of appeals for an order authorizing the district
4 court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Absent
5 authorization from the Court of Appeals, this Court lacks jurisdiction
6 over a successive petition. See Magwood v. Patterson, 561 U.S. 320,
7 330-331 (2010); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir.
8 2001), cert. denied, 538 U.S. 984 (2003).
Because petitioner has not
9 obtained leave from the Court of Appeals, this successive petition is
10 dismissed for lack of jurisdiction.1
It is so ordered.
Dated: JANUARY 26, 2017
Consuelo B. Marshall
United States District Judge
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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