Anthony Thompson v. Ralph Diaz

Filing 4

ORDER DISMISSING HABEAS CORPUS PETITION AND DENYING CERTIFICATE OF APPEALABILITY by Judge James V. Selna. The Petition is a "second or successive" petition without evidence that Petitioner obtained prior approval to file it by the Ninth Circuit Court of Appeals. As such, this Court lacks jurisdiction to consider its merits. Based on the foregoing, the Petition is summarily dismissed without prejudice for lack of jurisdiction. Case Terminated. Made JS-6. (es)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ANTHONY THOMPSON,
Case No. 2:20-08997 JVS (ADS)

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Petitioner,

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v.

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RALPH DIAZ,

ORDER DISMISSING HABEAS CORPUS
PETITION AND DENYING
CERTIFICATE OF APPEALABILITY

Respondent.

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Before the Court is a Petition for Writ of Habeas Corpus (“Petition”) filed by

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Petitioner Anthony Thompson, an inmate at Correctional Training Facility in Soledad,

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California. [Dkt. No. 1]. The Court’s review of the Petition, the Court’s own records, and

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public records reveals that this Petition is a second or successive petition and Petitioner

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has not obtained permission from the Ninth Circuit Court of Appeals before filing it.

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I.

RELEVANT BACKGROUND

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A review of Public Access to Court Electronic Records (PACER) reflects that

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Petitioner previously filed three Petitions for Writ of Habeas Corpus by a Person in State

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Custody in the Central District of California in 1999, 2000, and 2005. Petitioner’s first

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habeas petition was dismissed because Petitioner had not exhausted his available state

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remedies. Thompson v. Lamarque, Case No. 99-08464, [Dkt. No. 3]. His second

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habeas petition was dismissed with prejudice on grounds of procedural default.

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Thompson v. Lamarque, Case No. 00-06461, [Dkt. Nos. 20, 26]. Petitioner’s third

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habeas petition was dismissed as an unauthorized second or successive petition.

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Thompson v. Marshall, Case No. 05-02030, [Dkt. No. 3]. All three of Petitioner’s prior

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habeas petitions challenged his 1996 conviction of burglary.

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On April 7, 2016, Petitioner filed in the Ninth Circuit Court of Appeals an

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Application for Leave to File Second or Successive Petition, in which he sought to raise

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seven grounds for habeas relief. Thompson v. Spearman, Case No. 16-70978 (9th Cir.),

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[Dkt. No. 1]. On August 18, 2016, the Ninth Circuit denied Petitioner’s Application

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because Petitioner had not made the requisite prima facie showing under 28 U.S.C.

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§ 2244(b)(2). Id., [Dkt. No. 3].
On September 28, 2020, Petitioner filed the instant Petition, asserting that he is

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entitled to remand for resentencing due to a change of state law. [Dkt. No. 1, pp. 5-6].

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Petitioner also filed with this Court a Request for Second or Successive Petition for the

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Ninth Circuit Court of Appeal dated September 23, 2020. [Id., p. 1]. It is unclear

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whether the Request is a copy of one he filed with the Ninth Circuit, or if it is an original

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request that was mistakenly filed with this Court.

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II.

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DISCUSSION
This Petition is a successive habeas petition seeking resentencing due to a change

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in state law. A successive petition is permissible only if it meets an exception outlined

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under 28 U.S.C. § 2244(b)(2). Nevertheless, even “if a petitioner can demonstrate that

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he qualifies for one of these exceptions, he must seek authorization from the court of

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appeals before filing his new petition with the district court.” Woods v. Carey, 525 F.3d

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886, 888 (9th Cir. 2008) (citing 28 U.S.C. § 2244(b)(3)); see also Magwood v.

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Patterson, 561 U.S. 320, 330–31 (2010) (“If an application is ‘second or successive,’ the

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petitioner must obtain leave from the Court of Appeals before filing it with the district

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court.”); see also Rule 9 of the Rules Governing § 2254 Cases (“Before presenting a

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second or successive motion, the moving party must obtain an order from the

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appropriate court of appeals authorizing the district court to consider the motion . . . .”).

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The District Court lacks jurisdiction to consider and must dismiss unauthorized

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successive petitions. Burton v. Stewart, 549 U.S. 147, 153 (2007).

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The instant Petition is Petitioner’s fourth federal habeas petition challenging

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Petitioner’s imprisonment as a result of his 1996 judgment of conviction in the Los

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Angeles County Superior Court. Petitioner must first obtain authorization from the

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Ninth Circuit Court of Appeals before filing a new petition in this District Court. See 28

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U.S.C. § 2244(3)(A). However, Petitioner has not established he received authorization

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from the Ninth Circuit. A search of the Ninth Circuit’s electronic docketing system on

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PACER does not reflect that Petitioner recently obtained permission.

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Until Petitioner has authorization from the Ninth Circuit to file another habeas

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petition, this Court cannot consider Petitioner’s claims. Cooper v. Calderon, 274 F.3d

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1270, 1274 (9th Cir. 2001) (per curiam) (“When the AEDPA is in play, the district court

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may not, in the absence of proper authorization from the court of appeals, consider a

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second or successive habeas application.”). Rule 4 of the Rules Governing § 2254 Cases

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provides that if it plainly appears from the face of the petition and any exhibits attached

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to it that the Petitioner is not entitled to relief in the district court, the judge shall

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summarily dismiss the petition.

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III.

CONCLUSION
The Petition is a “second or successive” petition without evidence that Petitioner

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obtained prior approval to file it by the Ninth Circuit Court of Appeals. As such, this

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Court lacks jurisdiction to consider its merits. Based on the foregoing, the Petition is

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summarily dismissed without prejudice for lack of jurisdiction.

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IT IS SO ORDERED.

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Dated: October 13, 2020

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______________________________
THE HONORABLE JAMES V. SELNA
United States District Judge

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Presented by:

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___/s/ Autumn D. Spaeth______________
THE HONORABLE AUTUMN D. SPAETH
United States Magistrate Judge

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