Edy Ramirez v. Scott Frauenheim

Filing 4

ORDER OF DISMISSAL by Judge Beverly Reid O'Connell. The Petition is denied and dismissed without prejudice. (sp)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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EDY RAMIREZ,

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NO. CV 17-4222-BRO(E)
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Petitioner,
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v.
) ORDER OF DISMISSAL
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SCOTT FRAUENHEIM, Warden,
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Respondent.
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______________________________)

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On June 7, 2015, Petitioner filed a “Petition for Writ of Habeas

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Corpus by a Person in State Custody.”

The Petition challenges a 1997

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Los Angeles Superior Court “conviction and/or sentence” (Petition at

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2). Petitioner previously challenged this same 1997 Superior Court

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proceeding in a prior habeas corpus petition filed in this Court.

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Ramirez v. Cate, CV 12-9331-MMM(E).

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entered Judgment in Ramirez v. Cate, CV 12-9331-MMM(E), denying and

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dismissing the prior petition with prejudice as untimely.

See

On November 4, 2013, this Court

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The Court must dismiss the present Petition in accordance with
28 U.S.C. section 2244(b) (as amended by the “Antiterrorism and

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Effective Death Penalty Act of 1996”).

Section 2244(b) requires that

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a petitioner seeking to file a “second or successive” habeas petition

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first obtain authorization from the Court of Appeals.

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Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive

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authorization from Court of Appeals before filing second or successive

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petition, “the District Court was without jurisdiction to entertain

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[the petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir.

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2000) (“the prior-appellate-review mechanism set forth in § 2244(b)

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requires the permission of the court of appeals before ‘a second or

See Burton v.

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successive habeas application under § 2254’ may be commenced”).

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Contrary to Petitioner’s apparent argument, a petition need not be

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repetitive to be “second or successive,” within the meaning of 28

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U.S.C. section 2244(b).

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918, 920-21 (9th Cir.), cert. denied, 524 U.S. 965 (1998); Calbert v.

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Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. Mar. 6, 2008).

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dismissal of a habeas petition as untimely “constitutes an

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adjudication on the merits that renders future petitions under § 2254

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challenging the same conviction ‘second or successive’ petitions under

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§ 2244(b).”

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Petitioner evidently has not yet obtained authorization from the Ninth

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Circuit Court of Appeals.1

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the present Petition.

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also Remsen v. Att’y Gen. of Calif., 471 Fed. App’x 571, 571 (9th Cir.

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2012) (if a petitioner fails to obtain authorization from the Court of

See, e.g., Thompson v. Calderon, 151 F.3d

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

Consequently, this Court cannot entertain

See Burton v. Stewart, 549 U.S. at 157; see

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The docket for the United States Court of Appeals for
the Ninth Circuit, available on the Pacer database on
www.pacer.gov does not reflect that anyone named Edy Ramirez has
received authorization to file a second or successive petition.
See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th
Cir. 1988) (court may take judicial notice of court records).
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Appeals to file a second or successive petition, “the district court

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lacks jurisdiction to consider the petition and should dismiss it.”)

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(citation omitted).

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For all of the foregoing reasons, the Petition is denied and
dismissed without prejudice.2

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: June 13, 2017.

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___________________________________
BEVERLY REID O’CONNELL
UNITED STATES DISTRICT JUDGE

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PRESENTED this 8th day

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of June, 2017, by:

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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Ninth Circuit Rule 22-3(a) provides that “if a second
or successive petition . . . is mistakenly submitted to the
district court, the district court shall refer it to the court of
appeals.” Assuming arguendo that the conflict between 28 U.S.C.
section 2244(b) and Rule 22-3(a) does not invalidate the latter,
dismissal rather than “reference” still would be appropriate
herein. It is apparent that Petitioner submitted the present
Petition to this Court intentionally rather than mistakenly.
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