Case 2:22-cv-02467-JVS-AFM Document 3 Filed 04/18/22 Page 1 of 3 Page ID #:40

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 EMMETT JOHNSON, Case No. 2:22-cv-02467-JVS (AFM)

12 Petitioner,

ORDER SUMMARILY

13 DISMISSING HABEAS PETITION v.

FOR LACK OF SUBJECT

14

G. MATTISON, MATTER JURISDICTION

15 Respondent. 16 17 18 Petitioner, a state prisoner, was convicted of murder in 1996. (Los Angeles 19 County Superior Court Case No. TA041797.) He is currently serving a sentence of 20 life without parole imposed as a result of that conviction. On April 11, 2022, 21 Petitioner filed this petition for a writ of habeas corpus challenging his 1996 22 conviction. See 28 U.S.C. § 2254. (ECF 1.) 23 Petitioner has filed numerous prior habeas corpus petitions in the Central 24 District of California challenging his 1996 conviction. The first, filed in September 25 2010, was summarily dismissed on procedural grounds. Case No. 2:10-cv-06792- 26 JVS(RZ). The second petition, filed in December 2013, was dismissed with prejudice 27 as time-barred. Case No. 2:13-cv-07464-JVS(RZ). Four subsequent petitions were 28 each dismissed for lack of jurisdiction because they were successive. See Case Nos. Case 2:22-cv-02467-JVS-AFM Document 3 Filed 04/18/22 Page 2 of 3 Page ID #:41

1 2:14-cv-05869-JVS(RZ); 2:16-cv-03887-JVS(AFM); 2:17-cv-04564-JVS(AFM); 2 2:21-cv-04259-JVS(AFM). 3 The current petition alleges that the jury was provided with improper jury 4 instructions on felony-murder and on the law regarding natural and probable 5 consequences; the prosecution made representations that rendered it impossible for 6 the defense to fulfill its duty; and the prosecutor committed fraud on the court. (ECF 7 1 at 5-11.) Because the petition challenges the same judgment of conviction as did 8 the petition in Case Number CV 13-7464-JVS(RZ), which was dismissed with 9 prejudice as untimely, it is successive. See McNabb v. Yates, 576 F.3d 1028, 1030 10 (9th Cir. 2009) (holding that dismissal of a habeas petition as time barred under 28 11 U.S.C. § 2244(d)(1) constitutes a disposition on the merits and renders a subsequent 12 petition second or successive for purposes of 28 U.S.C. § 2244(b)). 13 “Before a second or successive application permitted by this section is filed in 14 the district court, the applicant shall move in the appropriate court of appeals for an 15 order authorizing the district court to consider the application.” 28 U.S.C. 16 § 2244(b)(3)(A). Absent authorization from the Court of Appeals, this Court lacks 17 jurisdiction over a successive petition. See Magwood v. Patterson, 561 U.S. 320, 330- 18 331 (2010); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). 19 Petitioner has not obtained authorization from the Ninth Circuit to file this 20 second or successive petition. Consequently, this Court is without jurisdiction to 21 entertain it. See Burton v. Stewart, 549 U.S. 147, 153 (2007). To the extent Petitioner 22 might contend that the petition meets an exception to the bar on successive petitions, 23 this argument must first be presented to the Court of Appeals. 1 24

25 1 Pursuant to Ninth Circuit Rule No. 22-3(a), when a request for authorization to file a successive petition is “mistakenly submitted” to a district court, it must be referred to the Ninth Circuit. Rule 26 22-3(a) also provides that a district court may refer such a petition to the Ninth Circuit when to so would serve the interests of justice. Neither circumstance is present in this case. Nevertheless, the 27 Clerk is directed to mail petitioner a copy of Ninth Circuit Form 12 so that petitioner may file an 28 application for leave to file a second or successive petition in the Court of Appeals.

2 Case, 2:22-cv-02467-JVS-AFM Document3 Filed 04/18/22 Page 3of3 Page ID #:42

1 IT THEREFORE IS ORDERED that this action be summarily dismissed 2 || without prejudice for lack of jurisdiction. 3 LET JUDGMENT BE ENTERED ACCORDINGLY. . 6 || DATED: April 18, 2022 YU 5 UNITED STATES DISTRICT JUDGE

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