Dew v. Hatton et al

Filing 22

ORDER DISMISSING Petition for Writ of Habeas Corpus for Lack of Jurisdiction. In light of the Ninth Circuit's order, the Court dismisses the second or successive petition for writ of habeas corpus for lack of jurisdiction pursuant to 28 U.S.C. § 2244(b) without prejudice. Signed by Judge Michael M. Anello on 1/4/2019.(rmc)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 10 11 12 13 14 15 SOUTHERN DISTRICT OF CALIFORNIA Case No.: 16cv1985-MMA (MDD) DAVID L. DEW, v. ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS FOR LACK OF JURISDICTION Petitioner, SHAWN HATTON, Warden, et al., Respondents. 16 17 On August 5, 2016, Petitioner David L. Dew (“Petitioner”), a state prisoner, filed a 18 petition for writ of habeas corpus (“petition”) pursuant to Title 28 of the United States 19 Code, Section 2254. See Doc. No. 1. On July 24, 2017, the Court issued an order 20 adopting the Recommendation of the magistrate judge that the petition be dismissed, and 21 dismissed the petition with prejudice. See Doc. No. 13. The Clerk of Court entered 22 judgment the same day. See Doc. No. 14. Petitioner appealed. See Doc. No. 15. 23 On November 30, 2018, the United States Court of Appeals for the Ninth Circuit 24 issued an order vacating the judgment, and remanding with instructions to dismiss the 25 petition for lack of jurisdiction. See Doc. No. 19. The circuit court’s judgment took 26 effect December 31, 2018, and constitutes the formal mandate issued pursuant to Rule 27 41(a) of the Federal Rules of Appellate Procedure. The mandate is spread, and this Court 28 -1- 16cv1985-MMA (MDD) 1 2 once again has jurisdiction.1 In its opinion, the Ninth Circuit noted that Petitioner previously filed a § 2254 3 petition challenging the same California conviction for second-degree felony murder. 4 See S.D. Cal. Case No. 3:98-cv-1533-J-POR. That petition was denied with prejudice on 5 September 30, 1990, and the Ninth Circuit affirmed in Dew v. Clarke, 424 F.3d 381 (9th 6 Cir. 2000). Moreover, the Ninth Circuit indicated that Petitioner has neither sought nor 7 been granted authorization to file a second or successive § 2254 petition. See Doc. No. 8 19 at 2. Thus, the Court lacked jurisdiction to entertain the second petition. 9 Accordingly, in light of the Ninth Circuit’s order, the Court DISMISSES the 10 second or successive petition for writ of habeas corpus for lack of jurisdiction pursuant to 11 28 U.S.C. § 2244(b) without prejudice. See Burton v. Stewart, 549 U.S. 147, 157 (2007). 12 13 IT IS SO ORDERED. 14 15 Dated: January 4, 2019 16 _____________________________ HON. MICHAEL M. ANELLO United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28                                                 1 Due to a clerical error, the Court previously issued an order dismissing the petition prior to the Ninth Circuit issuing the formal mandate; thus, the Court lacked subject matter jurisdiction over the action at that time. See Doc. No. 20. However, the Court once again has subject matter jurisdiction over the action and reissues its previous order of dismissal. -2- 16cv1985-MMA (MDD)

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?