1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ST. MICHAEL BALZARINI, Case No. 5:19-cv-01191-RGK-MAA

12 Petitioner,

ORDER SUMMARILY DISMISSING

13 ACTION WITHOUT PREJUDICE v. 14 DEAN BORDERS, Warden, 15 Respondent. 16 17 18 On June 27, 2019, Petitioner St. Michael Balzarini, acting pro se, filed a 19 petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (“Petition,” ECF 20 No. 1.) As discussed below, summary dismissal of the action is appropriate. 21 22 I. BACKGROUND 23 Petitioner was convicted and sentenced in 1995 in the San Bernardino 24 County Superior Court. (See Petition 2.) Although the Petition states that 25 Petitioner has not previously filed any federal habeas petitions with respect to this 26 judgment of conviction (id. at 7), this is Petitioner’s fifth federal habeas action in 27 this district predicated on the 1995 conviction. The Court takes judicial notice of 28 Petitioner’s prior habeas cases in this district. See Fed. R. Evid. 201(b)(2) (“The 1 court may judicially notice a fact that is not subject to reasonable dispute because 2 it . . . can be accurately and readily determined from sources whose accuracy cannot 3 reasonably be questioned.”); Harris v. County of Orange, 682 F.3d 1126, 1131-32 4 (9th Cir. 2012) (court may take judicial notice of “documents on file in federal or 5 state courts”); United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980) (“[A] 6 court may take judicial notice of its own records in other cases . . . .”). 7 In Balzarini v. Terhune, No. 2:00-cv-04590-GHK-AN, Petitioner filed a 8 habeas petition challenging his conditions of confinement. On May 23, 2000, the 9 Court entered judgment dismissing the petition without prejudice. (No. 2:00-cv- 10 04590-GHK-AN, ECF Nos. 3-4.) 11 In Balzarini v. Cambria, No. 2:01-cv-04663-GLT-AN, Petitioner filed a 12 petition challenging his custody arising from his 1995 conviction. The Magistrate 13 Judge assigned to the action issued a report and recommendation of dismissal for 14 failure to comply with a court order, failure to prosecute, and untimeliness. (See 15 No. 2:01-cv-04663-GLT-AN, ECF No. 15.)1 On December 5, 2001, the District 16 Judge adopted the report and recommendation and entered judgment dismissing the 17 petition with prejudice. (No. 2:01-cv-04663-GLT-AN, ECF Nos. 20-21.) 18 In Balzarini v. Woodford, No. 5:05-cv-00222-FMC-AN, Petitioner filed a 19 petition challenging his custody arising from his 1995 conviction. On April 20, 20 2005, the Court entered judgment summarily dismissing the petition without 21 prejudice as an unauthorized second or successive petition. (No. 5:05-cv-00222- 22 FMC-AN, ECF Nos. 3-4.) 23 In Balzarini v. Grounds, No. 5:12-cv-00028-GHK-AN, Petitioner filed a 24 petition challenging his custody arising from his 1995 conviction. On January 23, 25 2012, the Court entered judgment summarily dismissing the petition without 26 27 1 This report and recommendation is not presently available in the Court’s electronic filing system. Consequently, the Clerk is directed to attach the report and 28 recommendation to this Order. 1 prejudice as an unauthorized second or successive petition. (No. 5:12-cv-00028- 2 GHK-AN, ECF Nos. 5-6.) 3 The pending Petition asserts claims challenging Petitioner’s custody arising 4 from his 1995 conviction and sentence. (See Petition 2.) Nowhere in the Petition 5 does Petitioner allege that he has sought leave from a United States Court of 6 Appeals to file a second or successive petition. (See generally Petition.) 7 8 II. THE PETITION IS SUBJECT TO SUMMARY DISMISSAL 9 Rule 4 of the Rules Governing Section 2254 Cases in the United States 10 District Courts requires summary dismissal of federal habeas petitions “[i]f it 11 plainly appears from the petition and any attached exhibits that the petitioner is not 12 entitled to relief in the district court.” See also C.D. Cal. L.R. 72-3.2 (authorizing a 13 magistrate judge to prepare a proposed order for summary dismissal and proposed 14 judgment for a district judge). 15 28 U.S.C. § 2244(b) limits habeas petitioners from asserting certain claims in 16 a second or successive petition without leave from a United States Court of 17 Appeals. As articulated by the United States Supreme Court: 18 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 19 established a stringent set of procedures that a prisoner “in custody 20 pursuant to the judgment of a State court,” 28 U.S.C. § 2254(a), must 21 follow if he wishes to file a “second or successive” habeas corpus 22 application challenging that custody, § 2244(b)(1). In pertinent part, 23 before filing the application in the district court, a prisoner “shall move 24 in the appropriate court of appeals for an order authorizing the district 25 court to consider the application.” § 2244(b)(3)(A). A three-judge 26 panel of the court of appeals may authorize the filing of the second or 27 successive application only if it presents a claim not previously raised 28 that satisfies one of the two grounds articulated in § 2244(b)(2). 1 § 2244(b)(3)(C); Gonzalez v. Crosby, 545 U.S. 524, 529-530, 125 S. 2 Ct. 2641, 162 L. Ed. 2d 480 (2005); see also Felker v. Turpin, 518 3 U.S. 651, 656-657, 664, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). 4 Burton v. Stewart, 549 U.S. 147, 152-53 (2007). District courts lack jurisdiction to 5 consider unauthorized successive petitions and must dismiss such petitions. Id. at 6 153; see also 28 U.S.C. § 2244(b)(2); Rishor v. Ferguson, 822 F.3d 482, 490 (9th 7 Cir. 2016). 8 The Petition is an unauthorized second or successive petition. Petitioner’s 9 2001 petition for writ of habeas corpus, which was predicated on his 1995 10 conviction and sentence, was dismissed as untimely. (See Balzarini v. Cambria, 11 No. 2:01-cv-04663-GLT-AN, ECF No. 15, adopted, ECF No. 20.) A dismissal for 12 untimeliness operates as a disposition on the merits. McNabb v. Yates, 576 F.3d 13 1028, 1029 (9th Cir. 2009). Accordingly, a subsequent petition challenging the 14 same conviction constitutes a “second or successive” habeas petition relative to the 15 2001 petition. See id. The instant Petition is predicated on the same 1995 16 conviction and sentence challenged in Balzarini v. Cambria, No. 2:01-cv-04663- 17 GLT-AN, which the Court dismissed on the merits—not to mention the same 18 conviction and sentence challenged in two subsequent petitions, Balzarini v. 19 Woodford, No. 5:05-cv-00222-FMC-AN, and Balzarini v. Grounds, No. 5:12-cv- 20 00028-GHK-AN, both of which the Court dismissed as second or successive. 21 Even if Petitioner could demonstrate that he qualifies for an exception to the 22 bar on successive petitions, he must have obtained permission from the Ninth 23 Circuit before bringing the claims in the instant Petition. Woods v. Carey, 525 F.3d 24 886, 888 (9th Cir. 2008). Petitioner has not shown that he sought or obtained 25 authorization to file the instant Petition with any United States Court of Appeals. 26 (See generally Petition.) The Court’s independent search of the Ninth Circuit Court 27 of Appeal’s dockets using the electronic PACER case locator function indicates 28 Petitioner neither sought nor obtained such authorization. 1 Accordingly, this district court lacks jurisdiction to entertain the Petition, and 2 || summary dismissal is appropriate. 3 4 | II. THE COURT DENIES A CERTIFICATE OF APPEALABILITY 5 Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court 6 || “must issue or deny a certificate of appealability when it enters a final order adverse 7 || to the applicant.” The Court has found that the Petition should be dismissed 8 || without prejudice. For the reasons stated above, the Court concludes that Petitioner 9 || has not made a substantial showing of the denial of a constitutional right, as is 10 || required to support the issuance of a certificate of appealability. See 28 U.S.C. § 2253(c)(2). 12 13 | IV. CONCLUSION 14 IT IS THEREFORE ORDERED that the Petition be DISMISSED 15 | WITHOUT PREJUDICE. A certificate of appealability is DENIED. 16 17 || DATED: August 16, 2019 KQercceinn i a9 19 R. GARY KLAUSNER

UNITED STATES DISTRICT JUDGE

20 21 Presented by: 22 23 /s/ 24 || MARIA A. AUDERO 95 || UNITED STATES MAGISTRATE JUDGE 26 27 || ATTACHMENT No. 2:01-cv-04663-GLT-AN, ECF No. 15 28