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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 BOYDD D.J. IRVING, 12 No. 2:15-cv-2037 AC P Petitioner, 13 v. 14 DAVE DAVEY, 15 ORDER Respondent. 16 17 Petitioner, a state prisoner proceeding pro se, has filed a second amended petition for writ 18 of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the 19 undersigned magistrate judge for all purposes pursuant to 28 U.S.C. § 636(c) and Local Rule 20 305(a). ECF No. 5. 21 Under 28 U.S.C. § 2244(b)(3)(A), a second or successive application for habeas relief 22 may not be filed in district court without prior authorization by the court of appeals. Felker v. 23 Turpin, 518 U.S. 651, 657 (1996). Prior authorization is a jurisdictional requisite. Burton v. 24 Stewart, 549 U.S. 147, 152-53 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) 25 (once district court has recognized a petition as second or successive pursuant to § 2244(b), it 26 lacks jurisdiction to consider the merits). A petition is successive within the meaning of 28 27 U.S.C. § 2244(b) where it “seeks to add a new ground for relief” or “if it attacks the federal 28 court’s previous resolution of a claim on the merits.” Gonzalez v. Crosby, 545 U.S. 524, 532 1 1 (2005) (emphasis in original). “[A] ‘claim’ as used in § 2244(b) is an asserted federal basis for 2 relief from a state court’s judgment of conviction.” Id. at 530. “A habeas petition is second or 3 successive only if it raises claims that were or could have been adjudicated on the merits.” 4 McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (citing Woods v. Carey, 525 F.3d 886, 5 888 (9th Cir. 2008)). 6 In the instant petition, petitioner challenges his 2002 convictions in Sacramento Superior 7 Court Case No. 01F04127. ECF No. 38 at 1. The petition indicates (id. at 3), and the court’s 8 records confirm, that petitioner has previously filed an application for a writ of habeas corpus 9 attacking the conviction and sentence in Case No. 01F04127. The previous petition was filed on 10 August 11, 2005, and was denied on the merits on August 8, 2008. Irving v. People of the State 11 of California, E.D. Cal. No. 2:05-cv-01621 LKK CMK, ECF Nos. 1, 60, 67. This court takes 12 judicial notice of the record in that proceeding. United States v. Wilson, 631 F.2d 118, 119 (9th 13 Cir. 1980) (“[A] court may take judicial notice of its own records in other cases.”). 14 Petitioner has been advised on multiple occasions that if he is trying to challenge his 15 conviction in Case No. 01F04127, then pursuant to 28 U.S.C. § 2244(b)(3) he must first move in 16 the United States Court of Appeals for the Ninth Circuit for an order authorizing the district court 17 to consider the application and provide evidence that such authorization has been granted. ECF 18 No. 10 at 3; ECF No. 17 at 2; ECF No. 36 at 2-3. He was warned that failure to include evidence 19 that he was authorized to proceed in this court would result in the petition being dismissed. ECF 20 No. 10 at 3; ECF No. 36 at 2-3. Petitioner has not provided any evidence that he has sought and 21 received the required authorization. This action will therefore be dismissed without prejudice to 22 re-filing once petitioner receives authorization to proceed from the Ninth Circuit. 23 In accordance with the above, IT IS HEREBY ORDERED that this action is dismissed 24 without prejudice for lack of jurisdiction. 25 DATED: July 19, 2017 26 27 28 2

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