Case 2:22-cv-04536-GW-JDE Document 3 Filed 07/13/22 Page 1 of 5 Page ID #:88

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6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 WESTERN DIVISION 11 TYRONE THOMAS, ) No. 2:22-cv-04536-GW-JDE ) 12 Petitioner, ) ) ORDER TO SHOW CAUSE 13 v. ) ) WHY THE PETITION 14 T. ALLEN, Warden, ) ) S DH ISO MU IL SD SE N DO T BE ) 15 Respondent. ) ) 16

17 I. 18 INTRODUCTION 19 On July 1, 2022, Petitioner Tyrone Thomas (“Petitioner”), an inmate at 20 Salinas Valley State Prison, proceeding pro se, constructively filed a Petition 21 for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 22 § 2254 challenging his 1994 conviction for shooting at an inhabited dwelling 23 and 1995 sentencing enhancement for having suffered from two prior strike 24 convictions. Dkt. 1 (“Petition” or “Pet.”) at 2. Although the Petition states no 25 prior federal habeas petitions has been filed as to the 1994 conviction, this 26 Court’s records reveals Petitioner previously challenged this same 1994 27 conviction and 1995 sentence in this Court in Thomas v. Gonzalez, Case No. 28 1

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1 2:08-cv-04625-MMM-RC (C.D. Cal.) (“Prior Action”).1 Petitioner 2 constructively filed his habeas petition in the Prior Action on July 15, 2008, 3 and the Court dismissed the Prior Action as untimely on February 12, 2009. 4 Prior Action, Dkt. 1, 15. Petitioner then filed a Notice of Appeal in the Prior 5 Action, but the Ninth Circuit denied Petitioner a certificate of appealability 6 initially and upon reconsideration. Prior Action, Dkt. 16, 24, 25. 7 District courts are required to “promptly examine” all federal habeas 8 petitions brought under 28 U.S.C. § 2254 and, “[i]f it plainly appears from the 9 petition and any attached exhibits that the petitioner is not entitled to relief,” 10 the “judge must dismiss the petition[.]” Rule 4, Rules Governing Section 2254 11 Cases in the United States District Courts (“Habeas Rules”); Mayle v. Felix, 12 545 U.S. 644, 656 (2005). Based on a review of the Petition and the docket of 13 the Prior Action, it appears that the Petition herein constitutes a second and/or 14 successive petition under 28 U.S.C. § 2244(b), as Petitioner previously sought 15 federal habeas relief from the same judgment of conviction. 16 II. 17 PETITIONER’S CLAIMS 18 Petitioner characterizes his single claim as follows: “The trial court 19 imposed an illegal enhancement in case number LA017393.” 2 Pet. at 5. In 20 support, he asserts “being sentenced under two priors that brought forth a three 21 strikes sentence [is] in violation of the judgment set forth by the Superior Court 22 of the State of California, for the County of Amador in its order on the charge 23 of assault on a peace officer.” Id. 24

25 1 The Court takes judicial notice of its own records and files as well as Petitioner’s prior proceedings in the state courts. Fed. R. Evid. 201(b)(2); In re Korean Air Lines 26 Co., 642 F.3d 685, 689 n.1 (9th Cir. 2011); United States v. Wilson, 631 F.2d 118, 27 119 (9th Cir. 1980). 2 Case no. LA017393 refers to Petitioner’s 1994 conviction and 1995 sentence. See 28 Thomas v. Gonzalez, 2009 WL 393712, at *1 (C.D. Cal. Feb. 12, 2009). 2

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1 III. 2 DISCUSSION 3 The Antiterrorism and Effective Death Penalty Act of 1996 (the 4 “AEDPA”) applies to the instant action because Petitioner filed it after the 5 AEDPA’s effective date of April 24, 1996. See Campbell v. Henry, 614 F.3d 6 1056, 1058 (9th Cir. 2010). The AEDPA “greatly restricts the power of federal 7 courts to award relief to state prisoners who file second or successive habeas 8 corpus applications.” Tyler v. Cain, 533 U.S. 656, 661 (2001). Title 28, United 9 States Code, Section 2244(b) provides, in pertinent part, as follows: 10 (1) A claim presented in a second or successive habeas 11 corpus application under section 2254 that was presented in a prior 12 application shall be dismissed. 13 (2) A claim presented in a second or successive habeas 14 corpus application under section 2254 that was not presented in a 15 prior application shall be dismissed unless– 16 (A) the applicant shows that the claim relies on a new 17 rule of constitutional law, made retroactive to cases on 18 collateral review by the Supreme Court, that was previously 19 unavailable; or 20 (B)(i) the factual predicate for the claim could not have 21 been discovered previously through the exercise of due 22 diligence; and 23 (ii) the facts underlying the claim, if proven and 24 viewed in light of the evidence as a whole, would be 25 sufficient to establish by clear and convincing evidence that, 26 but for constitutional error, no reasonable factfinder would 27 have found the applicant guilty of the underlying offense. 28 (3)(A) Before a second or successive application permitted 3

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1 by this section is filed in the district court, the applicant shall move 2 in the appropriate court of appeals for an order authorizing the 3 district court to consider the application. 4 A petitioner’s failure to obtain authorization from the appropriate 5 appellate court before filing a second or successive habeas petition deprives the 6 district court of jurisdiction to consider the petition. See Burton v. Stewart, 549 7 U.S. 147, 157 (2007) (per curiam); Cooper v. Calderon, 274 F.3d 1270, 1274 8 (9th Cir. 2001) (per curiam). 9 Here, as explained above, the instant Petition challenges the same 1994 10 conviction and 1995 sentence that Petitioner challenged in the Prior Action. 11 Consequently, because the Court dismissed the Prior Action as untimely—and 12 thus adjudicated the Prior Action on the merits—the instant Petition appears 13 to constitute a second and/or successive petition. See McNabb v. Yates, 576 14 F.3d 1028, 1030 (9th Cir. 2009) (holding that dismissal of a section 2254 15 habeas petition for failure to comply with the statute of limitations renders 16 subsequent petitions second or successive for purposes of the AEDPA because 17 “dismissal of a first habeas petition for untimeliness presents a ‘permanent and 18 incurable’ bar to federal review of the underlying claims”); Garcia-Mesa v. 19 United States, 2022 WL 2304230, at *1 (9th Cir. June 27, 2022) (observing that 20 because petitioner’s first habeas petition was denied as untimely, which is a 21 merits determination, his current petition challenging the same conviction is 22 second and/or successive). As such, Petitioner must obtain permission from 23 the Ninth Circuit before this Court can adjudicate the issue raised in the 24 Petition. 28 U.S.C. § 2244(b)(3)(A). As Petitioner has not presented, and the 25 Court did not locate in a record search, any documentation indicating the 26 Ninth Circuit has issued “an order authorizing the district court to consider the 27 application,” it appears the Court lacks jurisdiction over the Petition, rendering 28 the instant Petition subject to dismissal. 4

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1 IV. 2 ORDER 3 For the foregoing reasons, the Petition is subject to dismissal. Petitioner 4 |lis ORDERED TO SHOW CAUSE why this action should not be dismissed 5 || without prejudice by filing a written response by no later than thirty (30) days 6 || from the date of this Order explaining that the Petition is not a second and/or 7 || successive petition or showing that the Ninth Circuit has authorized review of 8 || this Petition. If Petitioner contends the Petition is not a second and/or 9 || successive petition, Petitioner should clearly explain this and attach any 10 || supporting documents showing that his claim is not second and/or successive 11 || to his prior claim. 12 Alternatively, Petitioner may voluntarily dismiss this action by signing 13 || and returning the attached Notice of Dismissal under Federal Rule of Civil 14 || Procedure 41(a). The Clerk is directed to provide a Form Notice of Dismissal 15 || with this Order. 16 Petitioner is cautioned that a failure to respond timely in compliance 17 || with this Order may result in this action being dismissed for the foregoing 18 |/reasons, for failure to prosecute, and for failure to comply with a Court order. 19 || See Fed. R. Civ. P. 41(b). 20 21 ||Dated: July 13, 2022 ff 22 £ ‘4, Ke 2G 23 HN D. EARLY 04 nited States Magistrate Judge 25 26 27 28