Rance Hill v. Neil McDowell

Filing 12

MEMORANDUM AND ORDER DISMISSING PETITION by Judge Christina A. Snyder, re Petition for Writ of Habeas Corpus (2254), 1 . Because petitioner has not obtained leave from the Court of Appeals, the petition is dismissed for lack of jurisdiction. (see document for further details) (klg)

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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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11 RANCE HILL,
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) Case No. CV 16-7674-CAS(AJW)
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Petitioner,
) MEMORANDUM AND ORDER
) DISMISSING PETITION
v.
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NEIL McDOWELL,
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Respondent.
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_________________________________)

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On March 5, 2003, petitioner was convicted of assault with a

18 deadly weapon, battery with serious bodily injury, and second degree
19 robbery. The trial court found true the allegation that petitioner had
20 suffered a prior felony conviction. Petitioner was sentenced to state
21 prison for a term of twenty-one years. [See People v. Hill, 2004 WL
22 1344944].1
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Petitioner previously filed a petition for a writ of habeas corpus

24 in this Court challenging his 2003 conviction. Case No. CV 06-5367-JSL
25 (AJW). On October 5, 2010, judgment was entered denying the petition on
26 the merits. Petitioner’s requests for a certificate of appealability
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The California Court of Appeal affirmed petitioner’s
conviction, but vacated a one-year enhancement imposed based upon
petitioner having served a prior prison term.

1 were denied by this Court and by the Court of Appeals.
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Petitioner filed the current petition for a writ of habeas corpus

3 on October 3, 2016. The petition, which complains about the trial
4 court’s failure to grant petitioner pre-sentence custody credits,
5 constitutes another challenge to petitioner’s 2003 conviction and
6 sentence.
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“Before a second or successive application permitted by this

8 section is filed in the district court, the applicant shall move in the
9 appropriate court of appeals for an order authorizing the district
10 court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Absent
11 authorization from the Court of Appeals, this Court lacks jurisdiction
12 over a successive petition. See Magwood v. Patterson, 561 U.S. 320,
13 330-331 (2010); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir.
14 2001), cert. denied, 538 U.S. 984 (2003).
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Because petitioner has not obtained leave from the Court of

16 Appeals, the petition is dismissed for lack of jurisdiction.2
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It is so ordered.

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Dated: January 5, 2017
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Cristina A. Snyder
United States District Judge

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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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