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)

Download PDF
1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 WESTERN DIVISION 10 11 RANCE HILL, 12 13 14 15 ) Case No. CV 16-7674-CAS(AJW) ) Petitioner, ) MEMORANDUM AND ORDER ) DISMISSING PETITION v. ) ) NEIL McDOWELL, ) ) Respondent. ) _________________________________) 16 17 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 23 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 27 28 1 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. 2 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. 7 “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). 15 Because petitioner has not obtained leave from the Court of 16 Appeals, the petition is dismissed for lack of jurisdiction.2 17 It is so ordered. 18 Dated: January 5, 2017 19 Cristina A. Snyder United States District Judge 20 21 22 23 24 25 26 27 28 2 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. 2

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?