Case 2:22-cv-00779-CJC-PD Document 3 Filed 02/14/22 Page 1 of 3 Page ID #:13

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 CARL EUGENE GOWDY, Case No. 2:22-cv-00779-CJC-PD

12 Petitioner, ORDER DISMISSING

SECOND OR SUCCESSIVE

13 v.

HABEAS CORPUS PETITION;

14 C. PHIFER, WARDEN, DENYING CERTIFICATE OF

APPEALABILITY; AND

15 Respondent.

REFERRING PETITION

16 PURSUANT TO NINTH CIRCUIT RULE 22-3(a) 17

18 19 Before the Court is Petitioner’s seventh attempt to challenge his 2011 20 conviction for first degree murder and sentence. The jury found true that 21 Petitioner personally used a handgun with intent to cause great bodily harm and that the murder was committed for the benefit of a criminal street gang. 22 Petitioner was sentenced to state prison for a term of 50 years to life.1 [Dkt. 23 No. 1 at 1.] 24 25 26 1 Petitioner raises the following five claims: (1) that the prosecutor failed to disclose favorable evidence; (2) that he received ineffective assistance of counsel; 27 (3) violations of California’s Penal and Civil Codes; (4) that the evidence to convict him was insufficient; and (5) judicial and prosecutorial misconduct. [Dkt. No. 1 at 4- 28 6.] Case 2:22-cv-00779-CJC-PD Document 3 Filed 02/14/22 Page 2 of 3 Page ID #:14

1 The first habeas petition was summarily denied without prejudice on 2 the grounds it was unexhausted in 2013.2 3 Petitioner’s second habeas petition was summarily dismissed pursuant 4 to Rule 4 of the Rules Governing Section 2254 Cases in the United States 5 District Courts in January 2014.3 6 Petitioner filed a third habeas petition in October 2014. The 2014 7 Petition was dismissed with prejudice in May 2015 because it was filed more 8 than one year after Petitioner’s 2011 conviction became final and thus was 9 time-barred. This constituted a decision on the merits. See McNabb v. Yates, 10 576 F.3d 1028, 1029-30 (9th Cir. 2009) (holding dismissal of habeas petition 11 for untimeliness constitutes a decision on the merits and renders subsequent 12 petitions second or successive). This Court also denied his request for a 13 certificate of appealability.4 14 Petitioner’s fourth petition, in February 2016, was summarily dismissed for lack of jurisdiction as an unauthorized second or successive petition.5 15 In October 2020, Petitioner filed a fifth petition. The Court issued a 16 Report and Recommendation in April 2021 dismissing the petition as an 17 unauthorized second or successive petition.6 On May 20, 2021, the Court 18 issued an order denying Petitioner’s request for a certificate of appealability.7 19 Petitioner’s sixth petition, filed in May 2021, was summarily dismissed 20 for lack of jurisdiction as an unauthorized second or successive petition.8 21 22

23 2 Gowdy v. Biter, No. 2:13-cv-00569-CJC-FFM [Dkt. No. 4.] The Court takes judicial notice of Petitioner’s prior habeas petitions and requests for certificates of 24 appealability and the orders issued thereon. See Harris v. County of Orange, 682 F. 3d 1126, 1131-32 (9th Cir. 2012); Fed. R. Evid. 201(b). 25 3 Gowdy v. Warden, No. 2:14-cv-00181-CJC-FFM [Dkt. No. 4.] 4 Gowdy v. Holland, No. 2:14-cv-8481-FFM [Dkt. Nos. 20-22.] 26 5 Gowdy v. Holland, No. 2:16-cv-1340-CJC-FFM [Dkt. No. 4.] 27 6 Gowdy v. Kibler, No. 2:20-cv-9944-CJC-PD [Dkt. Nos. 15, 17-18.] 7 Gowdy v. Kibler, No. 2:20-cv-9944-CJC-PD [Dkt. Nos. 19-21.] 28 8 Gowdy v. Phifer, No. 2:21-cv-4125-CJC-PD. [Dkt. Nos. 1, 3, 4.]

2 Case 2:22-cv-00779-CJC-PD Document 3 Filed 02/14/22 Page 3o0f3 Page ID#:15

| The instant petition is also second and/or successive and is subject to 2 || dismissal. The dockets for the Ninth Circuit show that Petitioner has not 3 || obtained permission from the Ninth Circuit to file the instant Petition. 4 || Absent an order from the Ninth Circuit, Petitioner may not bring another 5 || habeas corpus petition in this Court challenging his 2011 conviction. See 28 6 || U.S.C. § 2244(b)(8)(A); Burton v. Stewart, 549 U.S. 147, 157 (2007) (holding 7 || district court lacks jurisdiction to consider merits of second or successive 8 || petition absent prior authorization from circuit court). For that reason, the 9 || Petition is DISMISSED without prejudice. 10 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 1] || Cases in the United States District Courts, the Court has considered whether 12 || certificate of appealability is warranted in this case. See 28 U.S.C. 13 || § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 14 || (20038); Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Court concludes that 15 || a certificate of appealability is unwarranted, and, thus, a certificate of 16 || appealability is DENIED. 7 IT IS FURTHER ORDERED that the Clerk of the Court shall refer the 18 Petition to the Ninth Circuit pursuant to Ninth Circuit Rule 22—8(a). 19 IT IS SO ORDERED. 20 >] Dated: February 14, 2022 Ke ye st 23 HON. CORMAG J. CANY 24 UNITED STATES DISTRICT JUDGE Presented by: 25 26 Pola 57 || HON. PATRICIA DONAHUE

UNITED STATES MAGISTRATE JUDGE

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