Irving v. Davey

Filing 39

ORDER signed by Magistrate Judge Allison Claire on 07/19/17 ordering this action is dismissed without prejudice for lack of jurisdiction. CASE CLOSED. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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BOYDD D.J. IRVING,

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No. 2:15-cv-2037 AC P

Petitioner,

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v.

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DAVE DAVEY,

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ORDER

Respondent.

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Petitioner, a state prisoner proceeding pro se, has filed a second amended petition for writ

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of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the

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undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule

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305(a). ECF No. 5.

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Under 28 U.S.C. § 2244(b)(3)(A), a second or successive application for habeas relief

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may not be filed in district court without prior authorization by the court of appeals. Felker v.

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Turpin, 518 U.S. 651, 657 (1996). Prior authorization is a jurisdictional requisite. Burton v.

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Stewart, 549 U.S. 147, 152-53 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001)

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(once district court has recognized a petition as second or successive pursuant to § 2244(b), it

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lacks jurisdiction to consider the merits). A petition is successive within the meaning of 28

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U.S.C. § 2244(b) where it “seeks to add a new ground for relief” or “if it attacks the federal

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court’s previous resolution of a claim on the merits.” Gonzalez v. Crosby, 545 U.S. 524, 532
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(2005) (emphasis in original). “[A] ‘claim’ as used in § 2244(b) is an asserted federal basis for

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relief from a state court’s judgment of conviction.” Id. at 530. “A habeas petition is second or

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successive only if it raises claims that were or could have been adjudicated on the merits.”

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McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing Woods v. Carey, 525 F.3d 886,

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888 (9th Cir. 2008)).

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In the instant petition, petitioner challenges his 2002 convictions in Sacramento Superior

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Court Case No. 01F04127. ECF No. 38 at 1. The petition indicates (id. at 3), and the court’s

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records confirm, that petitioner has previously filed an application for a writ of habeas corpus

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attacking the conviction and sentence in Case No. 01F04127. The previous petition was filed on

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August 11, 2005, and was denied on the merits on August 8, 2008. Irving v. People of the State

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of California, E.D. Cal. No. 2:05-cv-01621 LKK CMK, ECF Nos. 1, 60, 67. This court takes

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judicial notice of the record in that proceeding. United States v. Wilson, 631 F.2d 118, 119 (9th

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Cir. 1980) (“[A] court may take judicial notice of its own records in other cases.”).

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Petitioner has been advised on multiple occasions that if he is trying to challenge his

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conviction in Case No. 01F04127, then pursuant to 28 U.S.C. § 2244(b)(3) he must first move in

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the United States Court of Appeals for the Ninth Circuit for an order authorizing the district court

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to consider the application and provide evidence that such authorization has been granted. ECF

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No. 10 at 3; ECF No. 17 at 2; ECF No. 36 at 2-3. He was warned that failure to include evidence

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that he was authorized to proceed in this court would result in the petition being dismissed. ECF

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No. 10 at 3; ECF No. 36 at 2-3. Petitioner has not provided any evidence that he has sought and

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received the required authorization. This action will therefore be dismissed without prejudice to

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re-filing once petitioner receives authorization to proceed from the Ninth Circuit.

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In accordance with the above, IT IS HEREBY ORDERED that this action is dismissed

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without prejudice for lack of jurisdiction.

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DATED: July 19, 2017

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