Norman Humphreys v. Scott Kernan

Filing 4

MEMORANDUM AND ORDER DISMISSING PETITION by Judge Manuel L. Real, re Petition for Writ of Habeas Corpus (2254) 1 . Because petitioner has not obtained leave from the Court of Appeals, this successive petition is dismissed for lack of jurisdiction. (jsan)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 EASTERN DIVISION 10 11 NORMAN HUMPHREYS, 12 13 14 15 ) Case No. EDCV 17-653-R(AJW) ) Petitioner, ) MEMORANDUM AND ORDER ) DISMISSING PETITION v. ) ) SCOTT KERNAN, ) ) Respondent. ) _________________________________) 16 17 In 1996, petitioner was convicted in the Riverside County Superior 18 Court of one count of second degree murder and one count of child 19 endangerment. He was sentenced to state prison for a term of fifteen 20 years to life. [Petition at 2]. 21 On April 22, 1999, petitioner filed a petition for a writ of 22 habeas corpus in this Court challenging his 1996 conviction. Case No. 23 CV 99-4334-LGB(AJW). On August 28, 2000, judgment was entered denying 24 the petition on the merits. 25 Petitioner filed the current petition for a writ of habeas corpus 26 on April 6, 2017. The petition challenges the sentence imposed based 27 upon petitioner’s 1996 conviction. 28 1 “Before a second or successive application permitted by this 2 section is filed in the district court, the applicant shall move in the 3 appropriate court of appeals for an order authorizing the district 4 court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Absent 5 authorization from the Court of Appeals, this Court lacks jurisdiction 6 over a successive petition. See Magwood v. Patterson, 561 U.S. 320, 7 330-331 (2010); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 8 2001), cert. denied, 538 U.S. 984 (2003). 9 To the extent that petitioner might contend that his petition 10 meets an exception to the bar on successive petitions, he must present 11 any such argument to the Ninth Circuit Court of Appeals. Because 12 petitioner has not obtained leave from the Court of Appeals, this 13 successive petition is dismissed for lack of jurisdiction.1 14 It is so ordered. 15 Dated: April 18, 2017 16 Manuel L. Real United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 1 Ninth Circuit Rule No. 22-3(a) provides that “[i]f a second or successive petition or motion, or an application for authorization to file such a petition or motion, is mistakenly submitted to the district court, the district court shall refer it to the court of appeals.” Because the circumstances indicate that petitioner intentionally filed this action in this Court, not that he did so mistakenly, Rule 22-3(a) is inapplicable. Nevertheless, the Clerk is directed to mail petitioner a copy of Ninth Circuit Form 12 so that petitioner may file an application for leave to file a second or successive petition in the Court of Appeals.

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