Bryant Keith Underwood v. R. Broomfield

Filing 7

ORDER DISMISSING ACTION WITHOUT PREJUDICE by Judge Andre Birotte, Jr. The Court does not have jurisdiction to consider Petitioner's claims. The action is DISMISSED without prejudice as successive. (see document for further details) Case Terminated. Made JS-6. (hr)

1
2

JS-6

3
4
5
6
7
8
9

IN THE UNITED STATES DISTRICT COURT

10

FOR THE CENTRAL DISTRICT OF CALIFORNIA

11
12
13

BRYANT K. UNDERWOOD,
Petitioner,

14

ORDER DISMISSING ACTION
WITHOUT PREJUDICE

v.

15
16

Case No. CV 21-8676 AB (MRW)

R. BROOMFIELD, Warden,
Respondent.

17
18
19
20
21
22
23
24
25
26
27
28

The Court summarily dismisses this action pursuant to the
successive habeas petition rule under 28 U.S.C. §§ 2243 and 2244.
***
1.

Petitioner is currently serving a life term in state prison based

on his 2015 murder conviction for stabbing his cousin to death.
2.

In this federal habeas action, Petitioner seeks to advance

Miranda and Brady challenges related to his original trial. (Docket # 1.)
In a separate statement, Petitioner also alluded to “newly found evidence”
regarding the crime and police investigation. (Docket # 6.)

1

3.

Petitioner previously sought habeas relief in this Court

2

regarding his murder conviction. The Court denied Petitioner’s earlier

3

habeas petition on the merits of the claims asserted. Underwood v.

4

Sullivan, No. CV 17-7239 AB (MRW) (C.D. Cal.). Petitioner did not seek

5

appellate review of the denial of habeas relief in that action.

6

4.

Magistrate Judge Wilner screened the petition in the current

7

action. (Docket # 4.) Judge Wilner noted that the action appeared to be

8

successive, and was not accompanied by a certificate from the Ninth

9

Circuit authorizing a second habeas action under 28 U.S.C. § 2244.

10

Judge Wilner further noted that the action appeared to be untimely under

11

AEDPA, and contained claims that had not been presented to or exhausted

12

in the state supreme court. (Id. at 2-3.)

13

5.

Petitioner submitted a supplemental statement regarding the

14

petition. (Docket # 6.) That statement did not address the successive

15

nature of the new action at all, nor did it explain why Petitioner failed to

16

obtain permission from the appellate court as required under AEDPA.

17

Rather, Petitioner asserted that he has “no faith in repetitive appeals in

18

the state court” as the basis for his request for federal court consideration.

19

(Id. at 1.)

20
21

***
6.

If it “appears from the application that the applicant or person

22

detained is not entitled” to habeas relief, a court may summarily dismiss a

23

habeas action. 28 U.S.C. § 2243; see also Local Civil Rule 72-3.2

24

(magistrate judge may submit proposed order for summary dismissal to

25

district judge “if it plainly appears from the face of the petition [ ] that the

26

petitioner is not entitled to relief”).

27
28
2

1

7.

Under federal law, a state prisoner is generally required to

2

present all constitutional challenges to a state conviction in a single federal

3

action. “Before a second or successive [habeas petition] is filed in the

4

district court, the applicant shall move in the appropriate court of appeals

5

for an order authorizing the district court to consider the application.”

6

28 U.S.C. § 2244(b)(3)(A).

7

8.

A prisoner must obtain authorization from the Court of

8

Appeals to pursue such a successive habeas petition before the new petition

9

may be filed in district court. Id.; Burton v. Stewart, 549 U.S. 147, 156

10

(2007) (district court without jurisdiction to consider successive habeas

11

action when prisoner “neither sought nor received authorization from the

12

Court of Appeals before filing”).

13

9.

“If the petition is second or successive, then the district court

14

lacks jurisdiction and must dismiss the petition unless and until the court

15

of appeals grants an application to file it.” Brown v. Muniz, 889 F.3d 661,

16

667, 676 (9th Cir. 2018) (“petitioner’s burden is higher” under statute to

17

bring successive habeas action); Prince v. Lizzaraga, 733 F. App’x 382, 384

18

(9th Cir. 2018) (prisoner “must first apply to this [appellate] court for

19

permission to have his petition heard in the district court”).

20
21

***
10.

Petitioner’s current habeas action is subject to summary

22

dismissal. The petition challenges the same murder conviction that was

23

the subject of his earlier federal habeas action. That action (CV 17-7239)

24

was denied on the merits several years ago. This makes make the current

25

action successive. McNabb, 576 F.3d at 1030. Petitioner presents no proof

26

that he asked for or received permission from the Ninth Circuit to pursue

27
28
3

1

another successive action. The successive action must be dismissed.

2

28 U.S.C. § 2244(b); Brown, 889 F.3d at 667; Prince, 733 F. App’x at 384.

3

11.

Because the Court does not have jurisdiction to consider the

4

merits of Petitioner’s habeas claims, it declines to take up the alternate

5

potential procedural problems with the new petition (that is, untimeliness

6

and lack of proper exhaustion).

7
8
9
10

***
The Court does not have jurisdiction to consider Petitioner’s claims.
The action is DISMISSED without prejudice as successive.
IT IS SO ORDERED.

11
12
13

Dated: January 11, 2022

14

_______________________________
HON. ANDRE BIROTTE, JR.
UNITED STATES DISTRICT JUDGE

15
16

Presented by:

17
18
19
20

____________________________________
HON. MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE

21
22
23
24
25
26
27
28
4