Calvin Sumner Secrest v. S. Hatton

Filing 3

ORDER DISMISSING SECOND OR SUCCESSIVE HABEAS CORPUS PETITION AND DENYING CERTIFICATE OF APPEALABILITY by Judge R. Gary Klausner. (See document for further details.) (sbou)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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CALVIN S. SECREST,
Petitioner,

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v.
S. HATTON, WARDEN,
Respondent.

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CASE NO. CV 17-4061-RGK (PJW)
[PROPOSED] ORDER DISMISSING
SECOND OR SUCCESSIVE HABEAS CORPUS
PETITION AND DENYING CERTIFICATE
OF APPEALABILITY

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Before the Court is Petitioner’s latest attempt to challenge his

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February 2002 sentence, following his conviction in Los Angeles County

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Superior Court for first degree robbery, possession of a gun, and

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evasion of police.

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Petitioner has attempted to challenge his sentence in this court.

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first petition in 2009 was dismissed as untimely.

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CV 09-2291-RGK (JWJ), July 8, 2009 Order Accepting Report and

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Recommendation of United States Magistrate Judge.)

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attempted to appeal the Court’s ruling, but his application for a

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certificate of appealability was denied.

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09-56300, February 28, 2011 Order.)

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June 2012 and May 2014 were dismissed as unauthorized second or

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successive petitions.

(Petition at 2.)

This is the fourth time that
His

(Secrest v. Kramer,

Petitioner then

(Secrest v. Kramer, CCA No.

His second and third petitions in

(Secrest v. Brazelton, CV 12-4901-RGK (PJW),

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June 18, 2012 Order; Secrest v. Sherman, CV 14-3948-RGK (PJW), May 29,

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2014 Order.)

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reason.

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The instant Petition must be dismissed for the same

A petition that is dismissed for untimeliness “presents a

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‘permanent and incurable’ bar to federal review of the underlying

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claims” and renders a subsequent petition second or successive.

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McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009).

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from the Ninth Circuit, Petitioner may not bring a habeas petition

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challenging his February 2002 sentence in this court.

Absent an order

See 28 U.S.C.

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§ 2244; see also Burton v. Stewart, 549 U.S. 147, 157 (2007) (holding

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district court lacks jurisdiction to consider the merits of a second

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or successive petition absent prior authorization from the circuit

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court).

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Further, because Petitioner has not made a substantial showing of

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the denial of a constitutional right or that the court erred in its

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ruling, Petitioner is not entitled to a certificate of appealability.

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See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v.

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Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473,

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484 (2000).

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IT IS SO ORDERED.

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DATED: June 6, 2017

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R. GARY KLAUSNER
UNITED STATES DISTRICT JUDGE

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Presented by:

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PATRICK J. WALSH
UNITED STATES MAGISTRATE JUDGE

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C:\Users\sbourgeoi\AppData\Local\Temp\notesC7A056\Ord_dismiss_successive pet.wpd

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