I. INTRODUCTION

13 Petitioner Delano J. Tolden, a state prisoner incarcerated at California State Prison - 14 Solano, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, representing 15 himself. He challenges his state conviction. Respondent has moved to dismiss the petition as 16 successive under 28 U.S.C. § 2244(b). Dkt. 16 at 3.2 Tolden has not filed an opposition to the 17 motion, even though he was given the opportunity to do so. 18 For the reasons discussed below, the Court GRANTS Respondent’s motion to dismiss. 19

II. BACKGROUND

20 On December 13, 2004, a jury found Tolden guilty of one count of failing to register as a 21 sex offender (Cal. Penal Code § 290(a)(1)) in Santa Clara County Superior Court Case No. 22 CC467314.3 Resp’t Ex. 1 at 350, 353. The next day, the court found that Tolden had thirteen 23

24 1 Jason Schultz, the current acting warden of the prison where Tolden is incarcerated, has been substituted as Respondent pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. 25

2 Page number citations refer to those assigned by the Court’s electronic case management filing 26 system and not those assigned by the parties.

27 3 In his petition, Tolden has transposed two numbers by referring to Santa Clara County Superior 1 prior strike convictions (Cal. Penal Code §§ 667(b), 1170.12), and that he had served two prior 2 prison terms (Cal. Penal Code § 667.5(b)). Id. at 356. On April 21, 2005, the court sentenced 3 Tolden to twenty-five years to life in state prison.4 Id. at 472. The court also imposed a $10,000 4 restitution fine, a $200 penalty assessment, and a $20 court security fee. Id. 5 On March 27, 2007, the California Court of Appeal reduced the fines imposed, but 6 otherwise affirmed the judgment on appeal. People v. Tolden, 2007 WL 906619 (Cal. Ct. App. 7 Mar. 27, 2007). On June 20, 2007, the California Supreme Court denied review. Resp’t Ex. 2. 8 On August 7, 2008, Tolden filed a federal habeas petition challenging his 2004 conviction. 9 See Case No. 08-cv-3782-CW (PR), Dkt. 1. On March 1, 2010, the Court denied the petition. See 10 Case No. 08-cv-3782-CW (PR), Dkt. 19; Tolden v. Swarthout, 2010 WL 726733 (N.D. Cal. Mar. 11 1, 2010). On April 13, 2010, the Court granted a certificate of appealability. See Case No. 08-cv- 12 3782-CW (PR), Dkt. 26; Tolden v. Swarthout, 2010 WL 1486063 (N.D. Cal. Apr. 13, 2010). 13 On September 1, 2011, the Ninth Circuit affirmed the denial of the petition. Tolden v. 14 Tilton, 449 F. App’x 579, 581 (9th Cir. 2011). On September 29, 2011, the Ninth Circuit denied 15 the petition for panel rehearing.5 Ninth Circuit Case No. 10-15837, Dkt. 28. 16 On February 21, 2012, the United States Supreme Court denied the petition for writ of 17 certiorari. Tolden v. Cate, 565 U.S. 1206 (2012). 18 On June 12, 2023, Tolden filed the case at bar, again challenging his 2004 conviction. 19 Dkt. 7. 20 III. DISCUSSION 21 A claim presented in a second or successive petition for a writ of habeas corpus pursuant to 22 Penal Code § 290, which he indicates in the present petition as the crime for which he was 23 sentenced to “25 to life.” Compare Dkt. 7 at 1 with Resp’t Ex. 1 at 472.

24 4 In his second petition, Tolden incorrectly indicates that he received his life sentence on “May 1, 2002,” see Dkt. 7 at 1, but the record shows that he received that life sentence on April 21, 2005, 25 see Resp’t Ex. 1 at 472.

26 5 Tolden claims the “Chief Justice of the Ninth Circuit” ordered his immediate release on January 22, 2023, “but [he] is still in prison.” See Dkt. 7 at 2, 5. In their motion to dismiss, Respondent 27 states they were “unable to find any Ninth Circuit case related to petitioner other than case no. 10- 1 28 U.S.C. § 2254 must be dismissed if presented in a prior petition. See 28 U.S.C. § 2244(b)(1); 2 Babbitt v. Woodford, 177 F.3d 744, 745-46 (9th Cir. 1999). Similarly, if a claim was previously 3 presented, asserting a new factual basis for that claim in a second or successive petition is not 4 sufficient to prevent dismissal. See id. at 746 (foreclosing ineffective assistance claim based on 5 counsel’s alcohol abuse, after asserting claim of ineffective assistance premised on counsel’s 6 failure to present Post Traumatic Stress Disorder defense). Consequently, a petitioner must obtain 7 an order from the court of appeals which authorizes the district court to consider any second or 8 successive petition before that petitioner can file such a petition. See 28 U.S.C. § 2244(b)(3)(A). 9 Without such an order, a district court must dismiss the successive petition, including any new 10 claims raised in that petition. See id. § 2244(b)(2). A district court lacks jurisdiction to consider a 11 petitioner’s second habeas petition without prior authorization from the court of appeals. See 12 Burton v. Stewart, 549 U.S. 147, 153 (2007) (per curiam). 13 Respondent contends that the instant petition is successive because Tolden has filed a prior 14 federal habeas petition challenging the same underlying state conviction. See Dkt. 16 at 3. The 15 Court agrees with Respondent. Tolden challenged his 2004 conviction in a previously filed 16 habeas petition, which this Court denied. See Case No. 08-cv-3782-CW (PR), Dkts. 1, 19. Thus, 17 this Court lacks jurisdiction to consider Tolden’s second habeas petition without prior 18 authorization from the Ninth Circuit. See Burton, 549 U.S. at 153. Moreover, because Tolden has 19 not filed an opposition to the motion to dismiss, there is no dispute that Tolden has not obtained 20 the necessary order from the Ninth Circuit authorizing him to file a second or successive habeas 21 petition in federal court. See 28 U.S.C. § 2244(b)(3)(A). Therefore, this Court must dismiss the 22 instant petition in its entirety. See id. § 2244(b). 23 IV. CONCLUSION 24 For the foregoing reasons, the Court GRANTS Respondent’s motion to dismiss the 25 petition as successive, and the instant petition is DISMISSED. 26 Finally, because Tolden has not shown “that jurists of reason would find it debatable 27 whether the petition states a valid claim of the denial of a constitutional right and that jurists of 1 Slack v. McDaniel, 529 U.S. 473, 484 (2000), no certificate of appealability is warranted in this 2 case, see Rule 11(a) of the Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring 3 district court to rule on certificate of appealability in same order that denies petition). 4 The Clerk of the Court shall close the file. 5 This Order terminates Docket No. 16. 6 IT IS SO ORDERED. 7 Dated: July 22, 2024 8 □ 1.

10 ARACELI MARTINEZ-OLGUIN United States District Judge ll a 12

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