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)

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UNITED STATES DISTRICT COURT

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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.

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On August 5, 2016, Petitioner David L. Dew (“Petitioner”), a state prisoner, filed a

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petition for writ of habeas corpus (“petition”) pursuant to Title 28 of the United States

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Code, Section 2254. See Doc. No. 1. On July 24, 2017, the Court issued an order

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adopting the Recommendation of the magistrate judge that the petition be dismissed, and

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dismissed the petition with prejudice. See Doc. No. 13. The Clerk of Court entered

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judgment the same day. See Doc. No. 14. Petitioner appealed. See Doc. No. 15.

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On November 30, 2018, the United States Court of Appeals for the Ninth Circuit

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issued an order vacating the judgment, and remanding with instructions to dismiss the

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petition for lack of jurisdiction. See Doc. No. 19. The circuit court’s judgment took

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effect December 31, 2018, and constitutes the formal mandate issued pursuant to Rule

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41(a) of the Federal Rules of Appellate Procedure. The mandate is spread, and this Court

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16cv1985-MMA (MDD)

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once again has jurisdiction.1
In its opinion, the Ninth Circuit noted that Petitioner previously filed a § 2254

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petition challenging the same California conviction for second-degree felony murder.

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See S.D. Cal. Case No. 3:98-cv-1533-J-POR. That petition was denied with prejudice on

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September 30, 1990, and the Ninth Circuit affirmed in Dew v. Clarke, 424 F.3d 381 (9th

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Cir. 2000). Moreover, the Ninth Circuit indicated that Petitioner has neither sought nor

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been granted authorization to file a second or successive § 2254 petition. See Doc. No.

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19 at 2. Thus, the Court lacked jurisdiction to entertain the second petition.

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Accordingly, in light of the Ninth Circuit’s order, the Court DISMISSES the

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second or successive petition for writ of habeas corpus for lack of jurisdiction pursuant to

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28 U.S.C. § 2244(b) without prejudice. See Burton v. Stewart, 549 U.S. 147, 157 (2007).

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IT IS SO ORDERED.

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Dated: January 4, 2019

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_____________________________
HON. MICHAEL M. ANELLO
United States District Judge

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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.
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16cv1985-MMA (MDD)