1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EFREN VALENCIA, ) NO. CV 19-7228-FMO(E) ) 12 Petitioner, ) ) 13 v. ) ORDER OF DISMISSAL ) 14 UNKNOWN, ) ) 15 Respondent. ) ______________________________) 16 17 18 On August 20, 2019, Petitioner filed a “Petition for Writ of 19 Habeas Corpus By a Person in State Custody,” accompanied by a “Motion 20 for Review and Modification of Sentence” and a “Motion for Appointment 21 of Counsel.” The Court construes the “Petition for Writ, etc.” and 22 accompanying “Motion for Review, etc.” together as constituting the 23 Petition. 24 25 The Petition seeks to challenge a San Luis Obispo Superior Court 26 criminal judgment (Petition, p. 2). Petitioner previously challenged 27 the same Superior Court judgment in a prior habeas corpus petition 28 filed in this Court. See Valencia v. Allison, CV 10-5500-GHK(VBK). 1 On February 23, 2011, this Court entered judgment in Valencia v. 2 Allison, CV 10-5500-GHK(VBK), dismissing the prior petition with 3 prejudice as untimely. 4 5 The Court must dismiss the present Petition in accordance with 6 28 U.S.C. section 2244(b) (as amended by the “Antiterrorism and 7 Effective Death Penalty Act of 1996”). Section 2244(b) requires that 8 a petitioner seeking to file a “second or successive” habeas petition 9 first obtain authorization from the Court of Appeals. See Burton v. 10 Stewart, 549 U.S. 147, 157 (2007) (where petitioner did not receive 11 authorization from Court of Appeals before filing second or successive 12 petition, “the District Court was without jurisdiction to entertain 13 [the petition]”); Barapind v. Reno, 225 F.3d 1100, 1111 (9th Cir. 14 2000) (“the prior-appellate-review mechanism set forth in § 2244(b) 15 requires the permission of the court of appeals before ‘a second or 16 successive habeas application under § 2254’ may be commenced”). A 17 petition need not be repetitive to be “second or successive,” within 18 the meaning of 28 U.S.C. section 2244(b). See, e.g., Thompson v. 19 Calderon, 151 F.3d 918, 920-21 (9th Cir.), cert. denied, 524 U.S. 965 20 (1998); Calbert v. Marshall, 2008 WL 649798, at *2-4 (C.D. Cal. 21 Mar. 6, 2008). The dismissal of a habeas petition as untimely 22 “constitutes an adjudication on the merits that renders future 23 petitions under § 2254 challenging the same conviction ‘second or 24 successive’ petitions under § 2244(b).” McNabb v. Yates, 576 F.3d 25 1028, 1030 (9th Cir. 2009). 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; see also Remsen v. Att’y Gen. of Calif., 471 4 Fed. 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 /// 23 24 25 1 The Court takes judicial notice of the docket of the United States Court of Appeals for the Ninth Circuit, available 26 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 27 of court records). The Ninth Circuit’s docket does not show that any individual named Efren Valencia has obtained any order from 28 the Ninth Circuit permitting the filing of a second or successive 1 For all of the foregoing reasons, the Petition is denied and 2 dismissed without prejudice.2 3 4 LET JUDGMENT BE ENTERED ACCORDINGLY. 5 6 DATED: August 28, 2019. 7 8 9 _______________/_s_/__________________

FERNANDO M. OLGUIN

10 UNITED STATES DISTRICT JUDGE 11 12 PRESENTED this 22nd day of 13 August, 2019, by: 14 15 /s/

CHARLES F. EICK

16 UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 2 In light of this disposition, Plaintiff’s request for the appointment of counsel is denied. See Knaubert v. Goldsmith, 28 791 F.2d 722, 728-30 (9th Cir.), cert. denied, 479 U.S. 867