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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 DANNY JEROME YOUNG, ) NO. CV 20-8304-CJC(E) ) Petitioner, ) ) v. ) ORDER OF DISMISSAL ) DANIEL E. CUEVA, Warden (A), ) ) Respondent. ) ______________________________) 16 17 18 BACKGROUND 19 20 On September 9, 2020, Petitioner filed a “Petition for Writ of 21 Habeas Corpus By a Person in State Custody.” The Petition seeks to 22 challenge a 1982 Los Angeles criminal judgment. 23 challenged this same state court judgment in a prior federal habeas 24 petition filed in this Court. 25 On October 19, 2005, this Court entered Judgment in Young v. Evans, CV 26 05-0442-ABC(Mc), dismissing the prior petition as untimely. 27 /// 28 /// Petitioner previously See Young v. Evans, CV 05-0442-ABC(Mc). 1 DISCUSSION 2 3 Section 2244(b) of Title 28, United States Code, requires that a 4 petitioner seeking to file a “second or successive” habeas petition 5 first obtain authorization from the Court of Appeals. 6 Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive 7 authorization from Court of Appeals before filing “second or 8 successive” petition, “the District Court was without jurisdiction to 9 entertain [the petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th See Burton v. 10 Cir. 2000) (“the prior-appellate-review mechanism set forth in § 11 2244(b) requires the permission of the court of appeals before ‘a 12 second or successive habeas application under § 2254’ may be 13 commenced”). 14 successive,” within the meaning of 28 U.S.C. section 2244(b). 15 e.g., Thompson v. Calderon, 151 F.3d 918, 920-21 (9th Cir.) (en banc), 16 cert. denied, 524 U.S. 965 (1998); Calbert v. Marshall, 2008 WL 17 649798, at *2-4 (C.D. Cal. Mar. 6, 2008). A petition need not be repetitive to be “second or See, 18 19 The present Petition is second or successive. See McNabb v. 20 Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (“dismissal of a section 21 2254 habeas petition for failure to comply with the statute of 22 limitations renders subsequent petitions second or successive for 23 purposes of the AEDPA, 28 U.S.C. § 2244(b)”) (footnote omitted); see 24 also Youngblood v. Superior Court of Butte Co., 610 Fed. App’x 664 25 (9th Cir.), cert. dism’d, 136 S. Ct. 546 (2015) (contention that 26 petition was not second or successive because prior petition was 27 dismissed as untimely “foreclosed” by McNabb v. Yates; quoting Hart v. 28 Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (“Once a panel resolves 2 1 an issue in a precedential opinion, the matter is deemed resolved, 2 unless overruled by the court itself sitting en banc, or by the 3 Supreme Court.”)). 4 5 Petitioner may argue that the exception contained in section 6 2244(b)(2)(B)1 applies in the present circumstances.2 7 section 2244(b)(3)(A), a petitioner seeking to file a “second or 8 successive” petition must first obtain authorization from the Court of 9 Appeals. However, under See Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008) (“Even 10 if a petitioner can demonstrate that he qualifies for one of [the] 11 exceptions [contained in section 2244(B)(2)], he must seek 12 authorization from the court of appeals before filing his new petition 13 with the district court.”) (citation omitted); Ramirez v. Figueroa, 14 2016 WL 1296363, at *3 (C.D. Cal. Apr. 1, 2016) (“Petitioner must seek 15 the Ninth Circuit's authorization to file a successive petition even 16 if he can demonstrate that he qualifies for one of the exceptions to 17 AEDPA's bar on successive petitions.”) (citation omitted); Chaney v. 18 Dickerson, 2011 WL 781658, at *3 (C.D. Cal. Feb. 25, 2011) (“It is the 19 Ninth Circuit’s responsibility, not this Court’s, to determine that 20 the requirements of § 2244(b)(2)(B) have been met by filing a proper 21 1 22 23 24 25 26 27 28 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.” 2 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. 2 1 request with the Ninth Circuit for leave to file a successive 2 petition.”) (citations omitted). 3 obtained the Ninth Circuit’s authorization to file a “second or 4 successive” petition.3 5 present Petition. Petitioner evidently has not yet Consequently, this Court cannot entertain the See Burton v. Stewart, 549 U.S. at 157. 6 7 ORDER 8 9 10 For all the foregoing reasons, the Petition is denied and dismissed without prejudice. 11 12 LET JUDGMENT BE ENTERED ACCORDINGLY. 13 14   DATED: September 15, 2020. 15 16 CORMAC J. CARNEY 17 UNITED STATES DISTRICT JUDGE 18 Presented this 11th day 19 of September, 2020, by: 20 21 22 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 23 24 3 25 26 27 28 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. 3

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