Hodge v. Brown

Filing 6

ORDER signed by Magistrate Judge Edmund F. Brennan on 3/11/2015 DISMISSING this action for lack of jurisdiction and the court DECLINES to issue a certificate of appealability. CASE CLOSED. (Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ARBBIE M. HODGE,

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No. 2:14-cv-3000-EFB P

Petitioner,
v.

ORDER

EDMOND G. BROWN,

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Respondent.

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Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to

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28 U.S.C. § 2254.1 The court has reviewed the petition as required by Rule 4 of the Rules

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Governing Section 2254 Proceedings, and finds that the petition is second or successive and must

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therefore be dismissed.

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A petition is second or successive if it makes “claims contesting the same custody

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imposed by the same judgment of a state court” that the petitioner previously challenged, and on

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which the federal court issued a decision on the merits. Burton v. Stewart, 549 U.S. 147 (2007);

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see also Slack v. McDaniel, 529 U.S. 473, 485-86 (2000). Before filing a second or successive

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petition in a district court, a petitioner must obtain from the appellate court “an order authorizing

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the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Without an order from

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This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C.
§ 636(b)(1) and is before the undersigned pursuant to petitioner’s consent. See 28 U.S.C. § 636;
see also E.D. Cal. Local Rules, Appx. A, at (k)(4).

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the appellate court, the district court is without jurisdiction to consider a second or successive

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petition. See Burton, 549 U.S. 147.

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In the present action, petitioner challenges the Governor’s October 21, 2011 decision that

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petitioner was unsuitable for parole. ECF No. 1. Court records reveal that petitioner previously

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challenged this decision in an earlier action. See Hodge v. Cate, No. 2:12-cv-1471-CKD (E.D.

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Cal.). The earlier filed action was dismissed because the facts alleged in the petition did not

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entitle petitioner to habeas relief as a matter of law. See Hodge, No. 2:12-cv-1471-CKD (E.D.

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Cal. Aug. 6, 2012) (summarily dismissing petition under Rule 4 of the Rules Governing § 2254

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Cases for failure to state a federal claim). Thus, the earlier filed action was summarily dismissed

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on the merits. See O’Bremski v. Maass, 915 F.2d 418, 420 (9th Cir. 1990). Since petitioner

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challenges the same judgment now that he previously challenged and which was adjudicated on

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the merits, the petition now pending is second or successive.

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Petitioner offers no evidence that the appellate court has authorized this court to consider

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a second or successive petition. Since petitioner has not demonstrated that the appellate court has

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authorized this court to consider a second or successive petition, this action must be dismissed for

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lack of jurisdiction. See Burton, 549 U.S. 147; Cooper v. Calderon, 274 F.3d 1270, 1274 (9th

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Cir. 2001) (per curiam).

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Accordingly, it is hereby ORDERED that this action is dismissed for lack of jurisdiction

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and the court declines to issue a certificate of appealability.

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DATED: March 11, 2015.

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