1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 HAMIDULAH SARWARY, Case No. CV 2:24-07469 JFW (RAO)

12 Petitioner,

ORDER SUMMARILY

13 v. DISMISSING SUCCESSIVE

PETITION FOR WRIT OF HABEAS

14 PEGGY LLAMAS, CORPUS FOR LACK OF

JURISDICTION AND DENYING

15 Respondent. CERTIFICATE OF

APPEALABILITY

16 17 I. BACKGROUND 18 On August 1, 2024,1 Petitioner Hamidulah Sarwary (“Petitioner”) 19 constructively filed a Petition for Writ of Habeas Corpus by a Person in State Custody 20 (“Petition”) pursuant to 28 U.S.C. § 2254. Petitioner seeks habeas relief from his 21 current parole status arising from his 2017 conviction in Santa Barbara County 22 Superior Court, case number 1442831. Dkt. No. 1 (“Pet.”). 23 The records of this Court establish that Petitioner previously filed a habeas 24 action concerning the same 2017 conviction and sentence. See Sarwary v. Clark, No. 25

26 1 Pursuant to the prisoner “mailbox rule,” “the court deems the petition constructively ‘filed’ on the date it is signed.” Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 27 2010); see Houston v. Lack, 487 U.S. 266, 275-76, 108 S. Ct. 2379, 101 L. Ed. 2d 28 245 (1988). The Petition was filed with the Court on August 29, 2024. 1 2:20-cv-03878-JFW-RAO (C.D. Cal. Apr. 28, 2020).2 In Petitioner’s prior habeas 2 action concerning his 2017 conviction and sentence, the Court denied with prejudice 3 the operative petition. See Order Adopting Final Report and Recommendation and 4 Judgment, Sarwary v. Clark, No. 2:20-cv-03878-JFW-RAO (C.D. Cal. May 26, 5 2021), Dkt. Nos. 29-30. 6 A review of the instant Petition demonstrates that Petitioner again seeks federal 7 habeas relief concerning the same 2017 conviction and sentence. Pet. at 2. Neither 8 the Petition itself nor the records of the Ninth Circuit establish that the Ninth Circuit 9 has authorized Petitioner to bring a successive petition in this Court. 10 II. DISCUSSION 11 The United States Supreme Court has explained: 12 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a stringent set of procedures that a 13 prisoner “in custody pursuant to the judgment of a State 14 court,” 28 U.S.C. § 2254(a), must follow if he wishes to file a “second or successive” habeas corpus application 15 challenging that custody, § 2244(b)(1). In pertinent part, 16 before filing the application in the district court, a prisoner “shall move in the appropriate court of appeals for an order 17 authorizing the district court to consider the application.” 18 § 2244(b)(3)(A). A three-judge panel of the court of appeals may authorize the filing of the second or successive 19 application only if it presents a claim not previously raised 20 that satisfies one of the two grounds articulated in § 2244(b)(2). § 2244(b)(3)(C); Gonzalez v. Crosby, 545 21 U.S. 524, 529-530, 125 S. Ct. 2641, 162 L. Ed. 2d 480 22 (2005); see also Felker v. Turpin, 518 U.S. 651, 656-657, 664, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). 23 Burton v. Stewart, 549 U.S. 147, 152-53, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007). 24 /// 25

26 2 The Court takes judicial notice of the court records and files as well as those of the Court of Appeals for the Ninth Circuit, as necessary herein. See Fed. R. Evid. 27 201(b)(2); Harris v. Cty. of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012); United 28 States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 1 The Court finds that Petitioner’s present Petition is clearly a “second or 2 successive” habeas petition. Moreover, the Petition and records of the Ninth Circuit 3 establish that Petitioner has not been granted authorization by the Ninth Circuit to 4 file a successive petition to raise his claims. 5 For these reasons, the Court finds that it lacks jurisdiction to consider the 6 Petition. Therefore, the reference to the Magistrate Judge is vacated and the Petition 7 is dismissed for lack of jurisdiction. See Burton, 549 U.S. at 152-53. The Clerk is 8 directed to enter judgment dismissing the Petition. 9 III. CERTIFICATE OF APPEALABILITY 10 Under AEDPA, a state habeas petitioner seeking to appeal a district court’s 11 final order in a habeas corpus proceeding must obtain a Certificate of Appealability 12 (“COA”) from the district judge or a circuit judge. 28 U.S.C. § 2253(c)(1)(A). A 13 COA may issue “only if the applicant has made a substantial showing of the denial 14 of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this 15 standard by demonstrating that jurists of reason could disagree with the district 16 court’s resolution of his constitutional claims or that jurists could conclude the issues 17 presented are adequate to deserve encouragement to proceed further.” Miller-El v. 18 Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003). 19 When the Court dismisses a petition on procedural grounds, it must issue a 20 COA if the petitioner shows: (1) “that jurists of reason would find it debatable 21 whether the petition states a valid claim of the denial of a constitutional right”; and 22 (2) “that jurists of reason would find it debatable whether the district court was 23 correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478, 120 S. Ct. 24 1595, 146 L. Ed. 2d 542 (2000). 25 Here, the Court is dismissing the Petition without prejudice because it is a 26 successive petition without proper authorization from the Ninth Circuit. Since the 27 Petition is patently a successive petition, Petitioner cannot make the requisite 28 /// 1 || showing that jurists of reason would find it debatable whether the district court was 2 || correct in its procedural ruling. 3 IV. ORDER 4 Based on the foregoing, IT IS ORDERED THAT: 5 1. The Petition is DISMISSED without prejudice for lack of jurisdiction; and 6 2. A Certificate of Appealability is DENIED. 7 8 || DATED: September 17, 2024

N F. WALTER

10 ITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28