Case 5:22-cv-00861-MEMF-E Document 12 Filed 12/05/22 Page 1 of 3 Page ID #:55

1 JS-6, O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 Case No.: 5:22-cv-00861-MEMF(Ex) 11 JESSE KING,

12 Petitioner, ORDER DISMISSING CASE AND

JUDGMENT

13 v.

14

15 PATRICK EATON, Respondent. 16 17

18 19 20 Petitioner, a state prisoner, filed a “Petition for Writ of Habeas Corpus” in the United States 21 District Court for the Northern District of California. On May 23, 2022, the Northern District 22 transferred the Petition to this Court. 23 The Petition seeks to challenge a 1997 San Bernardino Superior Court criminal judgment. 24 Petitioner previously challenged this same Superior Court judgment in a prior habeas corpus petition 25 filed in this Court. See King v. Scribner, 5:03-cv-01554-DOC(FMOx). On August 19, 2004, this 26 Court entered Judgment in King v. Scribner, 5:03-cv-01554-DOC(FMOx), denying and dismissing 27 the prior petition with prejudice as untimely. The United States Court of Appeals for the Ninth 28 Circuit denied Petitioner’s request for a certificate of appealability on April 21, 2005.

1 Case 5:22-cv-00861-MEMF-E Document 12 Filed 12/05/22 Page 2 of 3 Page ID #:56

1 The Court must dismiss the present Petition in accordance with 28 U.S.C. § 2244(b) (as 2 amended by the “Antiterrorism and Effective Death Penalty Act of 1996”). Section 2244(b) requires 3 that a petitioner seeking to file a “second or successive” habeas petition first obtain authorization 4 from the Court of Appeals. See Burton v. Stewart, 549 U.S. 147, 157 (2007) (where petitioner did 5 not receive authorization from Court of Appeals before filing second or successive petition, “the 6 District Court was without jurisdiction to entertain [the petition]”); Barapind v. Reno, 225 F.3d 7 1100, 1111 (9th Cir. 2000) (“[T]he prior-appellate-review mechanism set forth in § 2244(b) requires 8 the permission of the court of appeals before ‘a second or successive habeas application under § 9 2254’ may be commenced.”). A petition need not be repetitive to be “second or successive,” within 10 the meaning of 28 U.S.C. section 2244(b). See, e.g., Thompson v. Calderon, 151 F.3d 918, 920–21 11 (9th Cir.), cert. denied, 524 U.S. 965 (1998); Calbert v. Marshall, 2008 WL 649798, at *2–4 (C.D. 12 Cal. Mar. 6, 2008). The dismissal of a habeas petition as untimely “constitutes a disposition on the 13 merits and that a further petition challenging the same conviction would be ‘second or successive’ 14 for purposes of 28 U.S.C. § 2244(b).” McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009). 15 Petitioner evidently has not yet obtained authorization from the Ninth Circuit Court of Appeals.1 16 Consequently, this Court cannot entertain the present Petition. See Burton v. Stewart, 549 U.S. at 17 157; see also Remsen v. Att’y Gen. of Calif., 471 Fed. App’x 571, 571 (9th Cir. 2012) (if a petitioner 18 fails to obtain authorization from the Court of Appeals to file a second or successive petition, “the 19 district court lacks jurisdiction to consider the petition and should dismiss it” (citation omitted)). 20 21 22 23 / / / 24 / / / 25 26 27 1 The docket for the United States Court of Appeals for the Ninth Circuit, available on the Pacer database on www.pacer.gov, does not reflect that anyone named Jesse King has received authorization to file a second or 28 successive petition. See Mir v. Little Company of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (court may take judicial notice of court records).

2 Case 5:22-cv-00861-MEMF-E Document 12 Filed 12/05/22 Page 3 of 3 Page ID #:57

1 For all of the foregoing reasons, it is hereby ORDERED and ADJUDGED that the Petition is 2 denied and dismissed without prejudice. 3 4 Dated: December 5, 2022 ___________________________________ 5 MAAME EWUSI-MENSAH FRIMPONG 6 United States District Judge 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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