Ernest Anthony Graves v. Ernest A. Gastelo

Filing 3

ORDER OF DISMISSAL by Judge Christina A. Snyder. The Petition is denied and dismissed without prejudice. (sp)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 13 14 15 ERNEST ANTHONY GRAVES, ) NO. ED CV 17-2527-CAS(E) ) Petitioner, ) ) v. ) ORDER OF DISMISSAL ) JOSIE GASTELO, Warden, ) ) Respondent. ) ______________________________) 16 17 18 On December 20, 2017, Petitioner filed a “Petition Under 28 19 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State Custody.” 20 The Petition challenges a 1996 Superior Court criminal judgment. 21 Petitioner previously challenged this same Superior Court criminal 22 judgment in a prior habeas corpus petition filed in this Court. 23 Graves v. Roe, CV 99-1492-AHM(E). 24 entered Judgment in Graves v. Roe, CV 99-1492-AHM(E), denying and 25 dismissing the prior petition on the merits with prejudice. See On January 7, 2000, this Court 26 27 28 The Court must dismiss the present Petition in accordance with 28 U.S.C. section 2244(b) (as amended by the “Antiterrorism and 1 Effective Death Penalty Act of 1996”). Section 2244(b) requires that 2 a petitioner seeking to file a “second or successive” habeas petition 3 first obtain authorization from the Court of Appeals. 4 Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive 5 authorization from Court of Appeals before filing second or successive 6 petition, “the District Court was without jurisdiction to entertain 7 [the petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 8 2000) (“the prior-appellate-review mechanism set forth in § 2244(b) 9 requires the permission of the court of appeals before ‘a second or See Burton v. 10 successive habeas application under § 2254’ may be commenced”). A 11 petition need not be repetitive to be “second or successive,” within 12 the meaning of 28 U.S.C. section 2244(b). 13 Calderon, 151 F.3d 918, 920-21 (9th Cir.), cert. denied, 524 U.S. 965 14 (1998); Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. 15 Mar. 6, 2008). 16 authorization from the Ninth Circuit Court of Appeals.1 17 this Court cannot entertain the present Petition. 18 Stewart, 549 U.S. at 157; Remsen v. Att’y Gen. of Calif., 471 Fed. 19 App’x 571, 571 (9th Cir. 2012) (if a petitioner fails to obtain 20 authorization from the Court of Appeals to file a second or successive 21 petition, “the district court lacks jurisdiction to consider the 22 petition and should dismiss it.”) (citation omitted). See, e.g., Thompson v. Petitioner evidently has not yet obtained Consequently, See Burton v. 23 24 1 25 26 27 28 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 Ernest Graves has obtained any order from the Ninth Circuit permitting the filing of a second or successive habeas petition in this Court. 2 1 2 For all of the foregoing reasons, the Petition is denied and dismissed without prejudice.2 3 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 DATED: January 8, 2018. 7 8 ___________________________________ CHRISTINA A. SNYDER UNITED STATES DISTRICT JUDGE 9 10 11 PRESENTED this 3rd day of 12 January, 2018, by: 13 14 15 /s/ CHARLES F. EICK UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 2 25 26 27 28 Ninth Circuit Rule 22-3(a) provides that “if a second or successive petition . . . is mistakenly submitted to the district court, the district court shall refer it to the court of appeals.” Assuming arguendo that the conflict between 28 U.S.C. section 2244(b) and Rule 22-3(a) does not invalidate the latter, dismissal rather than “reference” still would be appropriate herein. It is apparent that Petitioner submitted the present Petition to this Court intentionally rather than mistakenly. 3

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