Bulmario Torres v. S. Kernan ( 2019 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 BULMARIO TORRES, ) NO. CV 19-7689-CAS(E) ) 12 Petitioner, ) ) 13 v. ) ORDER OF DISMISSAL ) 14 S. KERNAN, ) ) 15 Respondent. ) ______________________________) 16 17 18 On July 1, 2019, Petitioner, a state prisoner, filed a “Petition 19 for Writ of Habeas Corpus” in United States Court of Appeals for the 20 Ninth Circuit. On August 12, 2019, the Ninth Circuit issued an order 21 stating that an “original petition for a writ of habeas corpus filed 22 pursuant to 28 U.S.C. § 2254” “must be made to the district court.” 23 The Ninth Circuit’s order transferred the Petition to the United 24 States District Court for the Eastern District of California. By 25 order filed September 4, 2019, the United States District Court for 26 the Eastern District of California transferred the Petition to the 27 United States District Court for the Central District of California. 28 /// 1 The Petition seeks to challenge a 2001 Los Angeles County 2 Superior Court criminal judgment (Petition at 2). Petitioner 3 previously challenged this same Superior Court judgment in a prior 4 habeas petition filed in this Court. See Torres v. Sherman, CV 17- 5 2745-R(E). On October 25, 2017, this Court entered Judgment in Torres 6 v. Sherman, CV 17-2745-R(E), denying and dismissing the prior petition 7 on the merits with prejudice. 8 9 The Court must dismiss the present Petition in accordance with 10 28 U.S.C. section 2244(b) (as amended by the “Antiterrorism and 11 Effective Death Penalty Act of 1996”). Section 2244(b) requires that 12 a petitioner seeking to file a “second or successive” habeas petition 13 first obtain authorization from the Court of Appeals. See Burton v. 14 Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive 15 authorization from Court of Appeals before filing second or successive 16 petition, “the District Court was without jurisdiction to entertain 17 [the petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 18 2000) (“the prior-appellate-review mechanism set forth in § 2244(b) 19 requires the permission of the court of appeals before ‘a second or 20 successive habeas application under § 2254’ may be commenced”). A 21 petition need not be repetitive to be “second or successive,” within 22 the meaning of 28 U.S.C. section 2244(b). See, e.g., Thompson v. 23 Calderon, 151 F.3d 918, 920-21 (9th Cir.), cert. denied, 524 U.S. 965 24 (1998); Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. 25 Mar. 6, 2008). Petitioner evidently has not yet obtained 26 /// 27 /// 28 /// 1 authorization from the Ninth Circuit Court of Appeals.1 Consequently, 2 this Court cannot entertain the present Petition. See Burton v. 3 Stewart, 549 U.S. at 157; Remsen v. Att’y Gen. of Calif., 471 Fed. 4 App’x 571, 571 (9th Cir. 2012) (if a petitioner fails to obtain 5 authorization from the Court of Appeals to file a second or successive 6 petition, “the district court lacks jurisdiction to consider the 7 petition and should dismiss it.”) (citation omitted). 8 /// 9 /// 10 /// 11 /// 12 /// 13 /// 14 /// 15 /// 16 /// 17 /// 18 /// 19 /// 20 21 22 1 The Court takes judicial notice of the docket of the United States Court of Appeals for the Ninth Circuit, available 23 on the PACER database. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice 24 of court records). The Ninth Circuit’s docket does not show that any individual named Bulmario Torres has obtained any order from 25 the Ninth Circuit under section 2244(b) authorizing the filing of a second or successive habeas petition in the District Court. 26 This Court does not construe the Ninth Circuit’s August 12, 27 2019 order as such an authorization. Under 28 U.S.C. section 2244(b)(3)(B), only “a three-judge panel of the court of appeals” 28 may grant such an authorization. An “Appellate Commissioner” 1 For all of the foregoing reasons, the Petition is denied and 2|| dismissed without prejudice. 3 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 DATED: September 10, 2019. 7 8 9 rate Abiuotus A CHRISTINA A. SNYDE 10 UNITED STATES DISTRICT ¥JUDGE 11 12] PRESENTED this 9th day of 13] September, 2019, by: 14 15 CHARLES F. EICK 16] UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28