Larry Bailey v. Stu Sherman et al

Filing 10

ORDER RE SUMMARY DISMISSAL OF ACTION by Judge Josephine L. Staton. Petitioner's failure to secure an order from the Ninth Circuit authorizing the District Court to consider any purported new claims being alleged in the Petition now pendin g, prior to his filing of the Petition in this Court, deprives the Court of subject matter jurisdiction. See Cooper, 274 F.3d at 1274. IT THEREFORE IS ORDERED that this action be summarily dismissed, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts. (lom) (Main Document 10 replaced on 9/24/2014) (dts).

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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) Case No. EDCV 14-1934-JLS (KK)
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Petitioner,
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) ORDER RE SUMMARY DISMISSAL
vs.
) OF ACTION
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STU SHERMAN, et al.,
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Respondents. )
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LARRY BAILEY,

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On June 10, 2013, petitioner Larry Bailey (“Petitioner”), proceeding pro se,

18 filed a Petition for Writ of Habeas Corpus by a Person in State Custody in Case
19 No. CV 13-04135-JLS (KK). The petition purported to be directed to Petitioner’s
20 January 20, 2013 conviction for failing to comply with sex offender registration
21 requirements, in violation of California Penal Code § 290(b). On June 26, 2014,
22 Respondent filed a Motion to Dismiss arguing that the petition was completely
23 unexhausted as to each of the four claims presented. On August 22, 2014, the
24 Court issued a Report and Recommendation that the Motion to Dismiss be granted.
25 Objections to the Report and Recommendation are currently due on September 22,
26 2014.
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On September 10, 2014, Petitioner (who is currently confined at the

28 California Substance Abuse Treatment Facility and Prison in Corcoran, California)
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1 filed the instant Petition for Writ of Habeas Corpus by a Person in State Custody
2 (“Petition”). Docket (“dkt.”) 1. Petitioner filed the Petition in the U.S. District
3 Court in the Southern District of California, and the case was transferred to this
4 Court on September 17, 2014. Dkt. 6.
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Although Petitioner has failed to properly complete the Petition, the instant

6 Petition also appears to be directed to Petitioner’s 2013 conviction for failing to
7 comply with sex offender registration requirements. As with the previously-filed
8 petition, Petitioner’s grounds for relief in the instant Petition are difficult to
9 discern. As for Ground One, Petitioner states “Treaties of the United States to be
10 free from racial discrimination with conspired hate crime 422.8.” As for Ground
11 Two, Petitioner states “CA Statue (sic) 422.55.”
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The Court’s consideration of Petitioner’s claims is governed by the

13 provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L.
14 104-132, 110 Stat. 1214) (“the Act”) which became effective April 24, 1996.
15 Section 106 of the Act amended 28 U.S.C. § 2244(b) to read, in pertinent part, as
16 follows:
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(1)

A claim presented in a second or successive habeas

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corpus application under section 2254 that was presented in a prior

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application shall be dismissed.

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(2)

A claim presented in a second or successive habeas

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corpus application under section 2254 that was not presented in a

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prior application shall be dismissed unless--

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(A)

the applicant shows that the claim relies on a new

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rule of constitutional law, made retroactive to cases on

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collateral review by the Supreme Court, that was previously

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unavailable; or

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(B)(i) the factual predicate for the claim could not have
been discovered previously through the exercise of due
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diligence; and

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(ii)

the facts underlying the claim, if proven and

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viewed in light of the evidence as a whole, would be sufficient

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to establish by clear and convincing evidence that, but for

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constitutional error, no reasonable factfinder would have found

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the applicant guilty of the underlying offense.

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(3)

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permitted by this section is filed in the district court, the

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applicant shall move in the appropriate court of appeals for an

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order authorizing the district court to consider the application.

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Although it is somewhat unclear as to whether Petitioner is seeking to raise

(A)

Before a second or successive application

12 claims not raised in his prior petition, or whether he is raising the same claims, this
13 distinction is immaterial to the Court’s analysis. If Petitioner purports to raise the
14 same claims raised in the prior petition, the instant Petition is barred by §
15 2244(b)(1). If Petitioner purports to raise new claims, not raised in the prior
16 petition, § 2244(b)(3)(A) requires that the petitioner seek permission from the
17 Circuit to file that second or successive petition. See Cooper v. Calderon, 274 F.3d
18 1270, 1275 (9th Cir. 2001). Such permission will be granted only if “the
19 application makes a prima facie showing that the application satisfies the
20 requirements of [Section 2244(b)].” See id. Only after the Circuit has made the
21 initial determination that the petitioner has made a prima facie showing under §
22 2244(b)(2) does the district court have any authority to consider whether the
23 petitioner has, in fact, met the statutory requirements of § 2244(b).
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While it does not appear to the Court that Petitioner can make the requisite

25 prima facie showing here, that is a determination for the Ninth Circuit to make in
26 the first instance. Petitioner’s failure to secure an order from the Ninth Circuit
27 authorizing the District Court to consider any purported new claims being alleged
28 in the Petition now pending, prior to his filing of the Petition in this Court,
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1 deprives the Court of subject matter jurisdiction. See Cooper, 274 F.3d at 1274.
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IT THEREFORE IS ORDERED that this action be summarily dismissed,

3 pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States
4 District Courts.
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IT IS FURTHER ORDERED THAT JUDGMENT BE ENTERED

6 ACCORDINGLY.
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8 DATED:

September 22, 2014

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HON. JOSEPHINE L. STATON
UNITED STATES DISTRICT JUDGE

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Presented by:

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Kenly Kiya Kato
15 United States Magistrate Judge
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