1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

DEL EDDY COLEGROVE,

11 Case No. 23-cv-03874 BLF (PR) Petitioner, 12 ORDER GRANTING MOTION TO v. DISMISS; DENYING 13 CERTIFICATE OF

APPEALABILITY

14 M. GUMBUA, Warden,

15 Respondent.

16

17 18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus pursuant to 28 U.S.C. § 2254, challenging his state sentence out of Santa Cruz 20 County Superior Court in 2009. Dkt. No. 1. Respondent filed a motion to dismiss the 21 petition as second or successive. Dkt. No. 14. Petitioner did not file an opposition 22 although given an opportunity to do so. 23 For the reasons set forth below, Respondent’s motion is GRANTED. 24 25 I. BACKGROUND 26 In 2009, Petitioner was found guilty by a jury in Santa Cruz County Superior Court 27 of seven counts of forcible oral copulation, three counts of forcible penetration by a 1 the age of 18, and six counts of unlawful sexual intercourse with a minor more than three 2 years younger than petitioner. Dkt. No. 14 at 1-2, citing People v. Colegrove, 2011 WL 3 5119121, at *1 (Cal.Ct.App. 2011). The trial court sentenced Petitioner to 64 years in state 4 prison. Id. 5 In 2011, the California Court of Appeal affirmed the judgment and denied a petition 6 for writ of habeas corpus. Dkt. No. 14 at 2, citing People v. Colegrove, 2011 WL 7 5119121. In 2012, the California Supreme Court denied petitions for review filed in the 8 appeal and habeas cases, and also denied a separately filed petition for writ of habeas 9 corpus. Id.; https://appellatecases.courtinfo.ca.gov (case nos. S198496, S198528, 10

S198529).

11 In 2013, Petitioner filed a federal habeas petition in this Court which denied the 12 petition on the merits in 2015. Colegrove v. Hoshino, No. 13-cv-00096 BLF, 2015 WL 13 269882 (N.D. Cal. 2015). In 2016, the Ninth Circuit affirmed this Court’s denial of habeas 14 relief. Colegrove v. Hoshino, 637 F.App’x 400 (9th Cir. 2016). 15 On August 2, 2023, Petitioner filed the instant habeas action, challenging the same 16 state criminal judgment he challenged in his previous federal habeas petition. Dkt. No. 1 17 at 2, 16-19. On November 1, 2023, the Court ordered Respondent to file a response to the 18 petition. Dkt. No. 13. 19

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II. DISCUSSION

21 A. Motion to Dismiss 22 A second or successive petition containing previously raised or new claims may not 23 be filed in the district court unless the petitioner first obtains from the United States Court 24 of Appeals an order authorizing the district court to consider the petition. 28 U.S.C. § 25 2244(b)(3)(A). The district court is “without power” to entertain a second or successive 26 1 petition unless the petitioner first receives authorization from the court of appeals. Chades 2 v. Hill, 976 F.3d 1055, 1056-57 (9th Cir. 2020). 3 Respondent argues that the instant habeas petition must be dismissed because it is 4 second or successive, and Petitioner does not allege that he has obtained authorization 5 from the Ninth Circuit Court of Appeal to proceed with a second or successive petition 6 challenging his 2009 conviction. Dkt. No. 14 at 3. Respondent also asserts that a search 7 of the Ninth Circuit’s online docketing systems shows that no other case besides 8 Petitioner’s previous 2015 appeal. Id.; see supra at 2. 9 A federal habeas petition is “second or successive” within the meaning of § 2244 “if 10 the facts underlying the claim occurred by the time of the initial petition, [] and if the 11 petition challenges the same state court judgment as the initial petition.” Brown v. Muniz, 12 889 F.3d 661, 667 (9th Cir. 2018) (citing Panetti v. Quarterman, 551 U.S. 930, 945 13 (2007), and Magwood v. Patterson, 561 U.S. 320, 333 (2010)). There is no dispute that 14 the instant petition meets both these requirements. Accordingly, the Court finds that the 15 new claims raised in this action challenges the same conviction challenged in a prior 16 federal habeas action and is therefore subject to 28 U.S.C. § 2244(b)(3)(A). As 17 Respondent correctly asserts, Petitioner is required to obtain an order from the Ninth 18 Circuit Court of Appeals authorizing this Court to consider a renewed challenge to his state 19 conviction based on new facts, claims or law. Petitioner has not presented such an order 20 from the Ninth Circuit of Appeals. Accordingly, the instant petition must be dismissed in 21 its entirety as second and successive. 22

23

III. CONCLUSION

24 For the foregoing reasons, Respondent’s motion to dismiss the petition is 25 GRANTED. Dkt. No. 14. The instant petition for a writ of habeas corpus is 26 1 DISMISSED as second or successive. 28 U.S.C. § 2244(b)(3)(A). Petitioner may file 2 another petition in this Court only if he obtains the necessary order from the Ninth Circuit. 3 No certificate of appealability is warranted in this case. See Rule 11(a) of the Rules 4 Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on 5 certificate of appealability in same order that denies petition). Petitioner has not shown 6 “that jurists of reason would find it debatable whether the petition states a valid claim of 7 the denial of a constitutional right and that jurists of reason would find it debatable 8 whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 9

U.S. 473, 484 (2000).

10 This order terminates Docket No. 14. 1]

IT ISSO ORDERED.

12 Dated: _July 24, 2024 fiounbhacncan

BETH LABSON FREEMAN

14 United States District Judge

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19 20 21 22 23 24 25 Order Granting MTD; Denying COA PRO-SE\BLF\HC.23\03874Colegrove_grant-mtd(sec&succ) 26 27