Danny Jerome Young v. Daniel E. Cueva

Filing 4

ORDER OF DISMISSAL by Judge Cormac J. Carney. 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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DANNY JEROME YOUNG,

) NO. CV 20-8304-CJC(E)
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Petitioner,
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v.
) ORDER OF DISMISSAL
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DANIEL E. CUEVA, Warden (A), )
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Respondent.
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______________________________)

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BACKGROUND

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On September 9, 2020, Petitioner filed a “Petition for Writ of

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Habeas Corpus By a Person in State Custody.”

The Petition seeks to

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challenge a 1982 Los Angeles criminal judgment.

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challenged this same state court judgment in a prior federal habeas

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petition filed in this Court.

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On October 19, 2005, this Court entered Judgment in Young v. Evans, CV

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05-0442-ABC(Mc), dismissing the prior petition as untimely.

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///

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Petitioner previously

See Young v. Evans, CV 05-0442-ABC(Mc).

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DISCUSSION

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Section 2244(b) of Title 28, United States Code, requires that a

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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

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successive” petition, “the District Court was without jurisdiction to

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

See Burton v.

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Cir. 2000) (“the prior-appellate-review mechanism set forth in §

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2244(b) requires the permission of the court of appeals before ‘a

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second or successive habeas application under § 2254’ may be

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commenced”).

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successive,” within the meaning of 28 U.S.C. section 2244(b).

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e.g., Thompson v. Calderon, 151 F.3d 918, 920-21 (9th Cir.) (en banc),

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cert. denied, 524 U.S. 965 (1998); Calbert v. Marshall, 2008 WL

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

A petition need not be repetitive to be “second or
See,

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The present Petition is second or successive.

See McNabb v.

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Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (“dismissal of a section

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2254 habeas petition for failure to comply with the statute of

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limitations renders subsequent petitions second or successive for

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purposes of the AEDPA, 28 U.S.C. § 2244(b)”) (footnote omitted); see

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also Youngblood v. Superior Court of Butte Co., 610 Fed. App’x 664

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(9th Cir.), cert. dism’d, 136 S. Ct. 546 (2015) (contention that

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petition was not second or successive because prior petition was

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dismissed as untimely “foreclosed” by McNabb v. Yates; quoting Hart v.

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Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (“Once a panel resolves
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an issue in a precedential opinion, the matter is deemed resolved,

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unless overruled by the court itself sitting en banc, or by the

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Supreme Court.”)).

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Petitioner may argue that the exception contained in section

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2244(b)(2)(B)1 applies in the present circumstances.2

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section 2244(b)(3)(A), a petitioner seeking to file a “second or

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successive” petition must first obtain authorization from the Court of

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Appeals.

However, under

See Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (“Even

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if a petitioner can demonstrate that he qualifies for one of [the]

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exceptions [contained in section 2244(B)(2)], he must seek

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authorization from the court of appeals before filing his new petition

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with the district court.”) (citation omitted); Ramirez v. Figueroa,

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2016 WL 1296363, at *3 (C.D. Cal. Apr. 1, 2016) (“Petitioner must seek

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the Ninth Circuit's authorization to file a successive petition even

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if he can demonstrate that he qualifies for one of the exceptions to

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AEDPA's bar on successive petitions.”) (citation omitted); Chaney v.

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Dickerson, 2011 WL 781658, at *3 (C.D. Cal. Feb. 25, 2011) (“It is the

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Ninth Circuit’s responsibility, not this Court’s, to determine that

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the requirements of § 2244(b)(2)(B) have been met by filing a proper

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Section 2244(b)(2)(B) provides that a claim presented
in a second or successive habeas corpus application that was not
presented in a prior application shall be dismissed unless: “(i)
the factual predicate for the claim could not have been
discovered previously through the exercise of due diligence; and
[¶] (ii) the facts underlying the claim, if proven, and viewed in
light of the evidence as a whole, would be sufficient to
establish by clear and convincing evidence that, but for
constitutional error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.”
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In Young v. Barretto, CV 16-1519-E, Petitioner so
argued in an unsuccessful attempt to persuade this Court to
adjudicate a prior second or successive petition.
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request with the Ninth Circuit for leave to file a successive

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petition.”) (citations omitted).

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obtained the Ninth Circuit’s authorization to file a “second or

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successive” petition.3

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present Petition.

Petitioner evidently has not yet

Consequently, this Court cannot entertain the

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

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ORDER

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

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: September 15, 2020.

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CORMAC J. CARNEY
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UNITED STATES DISTRICT JUDGE
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Presented this 11th day
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of September, 2020, by:
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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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The Court takes judicial notice of the docket of the
United States Court of Appeals for the Ninth Circuit, available
on the PACER database. See Mir v. Little Company of Mary Hosp.,
844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice
of court records). The Ninth Circuit’s docket does not show that
any individual named Danny Young has obtained any order from the
Ninth Circuit permitting the filing of a second or successive
habeas petition in this Court.
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