Michael C Brown v. M B Biter

Filing 6

ORDER OF DISMISSAL by Judge Percy Anderson. 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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MICHAEL C. BROWN,

) NO. ED CV 15-743-PA(E)
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Petitioner,
)
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v.
) ORDER OF DISMISSAL
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M.D. BITER (Warden Kern
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Valley St. Prison),
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Respondent.
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______________________________)

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On April 15, 2015, Petitioner filed a “Petition for Writ of

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Habeas Corpus by a Person in State Custody” (“the Petition”).

The

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Petition challenges Petitioner’s 1997 Riverside Superior Court

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criminal judgment.

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criminal judgment in a prior habeas corpus petition filed in this

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Court.

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this Court entered Judgment in Brown v. Terhune, CV 02-61-PA(E),

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denying and dismissing the prior petition on the merits with

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prejudice.

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///

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///

Petitioner previously challenged this same

See Brown v. Terhune, CV 02-61-PA(E).

On February 4, 2003,

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The Court must dismiss the present Petition in accordance with

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28 U.S.C. section 2244(b) (as amended by the “Antiterrorism and

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Effective Death Penalty Act of 1996”).

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a 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 successive

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petition, “the District Court was without jurisdiction to entertain

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

Section 2244(b) requires that

See Burton v.

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2000) (“the prior-appellate-review mechanism set forth in § 2244(b)

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requires the permission of the court of appeals before ‘a second or

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successive habeas application under § 2254’ may be commenced”).

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petition need not be repetitive to be “second or successive,” within

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the meaning of 28 U.S.C. section 2244(b).

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Calderon, 151 F.3d 918, 920-21 (9th Cir.), cert. denied, 524 U.S. 965

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(1998); Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal.

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Mar. 6, 2008).

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authorization from the Ninth Circuit Court of Appeals (see Petition,

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p. 7).1

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Petition.

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Gen. of Calif., 471 Fed. App’x 571, 571 (9th Cir. 2012) (if a

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petitioner fails to obtain authorization from the Court of Appeals to

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file a second or successive petition, “the district court lacks

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See, e.g., Thompson v.

Petitioner evidently has not yet obtained

Consequently, this Court cannot entertain the present
See Burton v. Stewart, 549 U.S. at 157; Remsen v. Att’y

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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 Michael C. Brown 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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jurisdiction to consider the petition and should dismiss it.”)

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(citation omitted).

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For all of the foregoing reasons, the Petition is denied and
dismissed without prejudice.2

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: May 12, 2015.

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___________________________________
PERCY ANDERSON
UNITED STATES DISTRICT JUDGE

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PRESENTED this 11th day of

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May, 2015, by:

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_____________/S/_______________
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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In light of this disposition, Petitioner’s “Motion and
Declaration for Appointment of Counsel,” filed April 15, 2015, is
denied.
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