Tracy Lavail Collier v. Debbie Asuncion

Filing 5

ORDER OF DISMISSAL by Judge Consuelo B. Marshall. 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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TRACY LAVAIL COLLIER,

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Petitioner,
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v.
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DEBBIE ASUNCION, PROVOST,
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Respondent.
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______________________________)

NO. ED CV 18-0432-CBM(E)

ORDER OF DISMISSAL

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On March 2, 2018, Petitioner filed a “Petition for Writ of Habeas

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Corpus by a Person in State Custody.”

The Petition challenges

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Petitioner’s 1992 conviction and sentence in San Bernardino Superior

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Court No. CR-56699 (Petition at 2).

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the same conviction and sentence in a habeas petition filed in this

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Court in 1996.

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habeas petition”).

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denied and dismissed the prior habeas petition with prejudice.

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basis for this denial and dismissal was a procedural default by

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Petitioner.

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Petitioner previously challenged

See Collier v. Prunty, No. 96-0248-AAH(E) (“the prior
By Judgment entered May 17, 1996, this Court
The

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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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constitutes a disposition on the merits and thus renders a subsequent

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§ 2254 petition or § 2255 motion ‘second or successive’ for purposes

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of the AEDPA.”

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cert. denied, 546 U.S. 884 (2005); accord McNabb v. Yates, 576 F.3d

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1028, 1029 (9th Cir. 2009).

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See, e.g., Thompson v.

“[A] denial on grounds of procedural default

Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir.),

Petitioner evidently has not yet obtained

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authorization from the Ninth Circuit Court of Appeals.1

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this Court cannot entertain the present Petition.

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Stewart, 549 U.S. at 157; see also Remsen v. Att’y Gen. of Calif., 471

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Fed. App’x 571, 571 (9th Cir. 2012) (if a petitioner fails to obtain

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authorization from the Court of Appeals to file a second or successive

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petition, “the district court lacks jurisdiction to consider the

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petition and should dismiss it.”) (citation omitted).2

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Consequently,

See Burton v.

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The docket for the United States Court of Appeals for
the Ninth Circuit, available on the Pacer database on
www.pacer.gov does not reflect that anyone named Tracy Collier
has received authorization to file a second or successive
petition. See Mir v. Little Company of Mary Hosp., 844 F.2d 646,
649 (9th Cir. 1988) (court may take judicial notice of court
records).
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Twice previously this Court has denied as “second or
successive” habeas petitions in which Petitioner attempted to
challenge his 1992 conviction and sentence. See Collier v.
Bisby, ED CV 10-1737-CBM(E); Collier v. Dextor, ED CV 08-122CBM(E).
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For all of the foregoing reasons, the Petition is denied and
dismissed without prejudice.3

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LET JUDGMENT BE ENTERED ACCORDINGLY.

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DATED: March 12, 2018.

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___________________________________
CONSUELO B. MARSHALL
UNITED STATES DISTRICT JUDGE

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PRESENTED this 7th day

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of March, 2018, by:

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/s/
CHARLES F. EICK
UNITED STATES MAGISTRATE JUDGE

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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.
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