Case 2:22-cv-02604-DDP-MRW Document 8 Filed 02/22/23 Page 1 of 5 Page ID #:242

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4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 22-2604 DDP (MRW) 13 DAVID WAYNE WILSON,

ORDER DISMISSING HABEAS

14 Petitioner,

ACTION WITHOUT PREJUDICE

15 v. 16 THERESA CISNEROS, Warden, 17 Respondent. 18 19 The Court summarily dismisses this action pursuant to the 20 successive habeas petition rule under 28 U.S.C. §§ 2243 and 2244. 21 * * * 22 1. In 1997, Petitioner pled nolo contendere to assaulting a peace 23 officer. Under California’s Three Strikes sentencing statute, he was 24 sentenced to life in prison. (Docket # 1 at 2.) Petitioner did not appeal his 25 conviction or sentence. 26 2. In his current federal habeas corpus action, Petitioner wishes 27 to challenge aspects of the pretrial, plea, and sentencing phases of his 28 original conviction. Case 2:22-cv-02604-DDP-MRW Document 8 Filed 02/22/23 Page 2 of 5 Page ID #:243

1 3. Petitioner previously sought habeas relief in this Court 2 regarding his conviction. The Court dismissed that action as untimely and 3 for failing to state a cognizable claim for habeas relief. Wilson v. Sherman, 4 No. CV 19-7708 DDP (MRW) (C.D. Cal.). The United States Court of 5 Appeals for the Ninth Circuit recently denied Petitioner’s untimely request 6 for a certificate of appealability regarding the dismissal of Petitioner’s first 7 habeas action. (Docket # 33.) 8 4. Magistrate Judge Wilner screened the petition in the current 9 action. (Docket # 4.) Judge Wilner noted that the action appeared to be 10 successive, and was not accompanied by a certificate from the Ninth 11 Circuit authorizing a second habeas action under 28 U.S.C. § 2244. 12 Judge Wilner further noted that the petition: (a) appeared to be untimely 13 under AEDPA; (b) contained claims that had not been properly presented 14 to or exhausted in the state supreme court; and (c) presented vague or 15 state-law-based claims that were likely not cognizable on federal review. 16 (Id. at 2-3.) 17 5. Petitioner submitted a supplemental statement regarding the 18 petition. (Docket # 6.) Petitioner claimed that that district court was 19 required to refer Petitioner’s defective petition to the circuit court for 20 consideration of permission to pursue a second habeas action.1 Petitioner

21 1 Petitioner purported to cite to 28 U.S.C. § 2255 for this concept. (Docket # 6 at 2.) He actually appears to rely on Ninth Circuit Rule 22-3, which 22 states:

23 If an application for authorization to file a second or successive section 2254 petition or section 2255 motion is 24 mistakenly submitted to the district court, the district court shall refer it to the court of appeals. If an 25 unauthorized second or successive section 2254 petition or section 2255 motion is submitted to the district court, the 26 district court may, in the interests of justice, refer it to the court of appeals. 27 (emphasis added). 28 2 Case 2:22-cv-02604-DDP-MRW Document 8 Filed 02/22/23 Page 3 of 5 Page ID #:244

1 also advanced a cursory and unsupported request for equitable tolling of 2 the AEDPA deadline, and other arguments regarding the merits of his 3 claims. 4 * * * 5 6. If it “appears from the application that the applicant or person 6 detained is not entitled” to habeas relief, a court may summarily dismiss a 7 habeas action. 28 U.S.C. § 2243; see also Local Civil Rule 72-3.2 8 (magistrate judge may submit proposed order for summary dismissal to 9 district judge “if it plainly appears from the face of the petition [ ] that the 10 petitioner is not entitled to relief”). 11 7. Under federal law, a state prisoner is generally required to 12 present all constitutional challenges to a state conviction in a single federal 13 action. “Before a second or successive [habeas petition] is filed in the 14 district court, the applicant shall move in the appropriate court of appeals 15 for an order authorizing the district court to consider the application.” 16 28 U.S.C. § 2244(b)(3)(A). 17 8. A prisoner must obtain authorization from the Court of 18 Appeals to pursue such a successive habeas petition before the new petition 19 may be filed in district court. Id.; Burton v. Stewart, 549 U.S. 147, 156 20 (2007) (district court without jurisdiction to consider successive habeas 21 action when prisoner “neither sought nor received authorization from the 22 Court of Appeals before filing”). 23 9. “If the petition is second or successive, then the district court 24 lacks jurisdiction and must dismiss the petition unless and until the court 25 of appeals grants an application to file it.” Brown v. Muniz, 889 F.3d 661, 26 667, 676 (9th Cir. 2018) (“petitioner’s burden is higher” under statute to 27 bring successive habeas action); Prince v. Lizzaraga, 733 F. App’x 382, 384 28 3 Case 2:22-cv-02604-DDP-MRW Document 8 Filed 02/22/23 Page 4 of 5 Page ID #:245

1 (9th Cir. 2018) (prisoner “must first apply to this [appellate] court for 2 permission to have his petition heard in the district court”). 3 10. A dismissal of a habeas action “for failure to comply with the 4 statute of limitations renders subsequent petitions second or successive for 5 purposes of the AEDPA,” thereby requiring appellate court permission for 6 the new filing. McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009); 7 Remsen v. Attorney General, 471 F. App’x 571 (9th Cir. 2012) (same). 8 * * * 9 11. Petitioner’s current habeas action is subject to summary 10 dismissal. The petition challenges the same conviction that was the 11 subject of his earlier federal habeas action. That action (CV 19-7708) was 12 dismissed as untimely. That makes the current action successive. 13 McNabb, 576 F.3d at 1030; Remsen, 471 F. App’x at 571. Petitioner 14 presents no proof that he asked for or received permission from the Ninth 15 Circuit to pursue another successive action. The successive action must be 16 dismissed for lack of jurisdiction. 28 U.S.C. § 2244(b); Brown, 889 F.3d at 17 667; Prince, 733 F. App’x at 384. 18 12. Petitioner does not convincingly demonstrate that this district 19 court must refer the action to the circuit court on his behalf for 20 consideration of authorization to file a successive petition under Section 21 2244. Petitioner clearly did not “mistakenly” submit an application for a 22 successive action in the district court (C.R. 22-3); he filed no application at 23 all. Further, based on (a) the nature of the dismissal of the first action, 24 (b) the circuit’s denial of a certificate of appealability, and (c) the obvious 25 problems with Petitioner’s current habeas petition (untimeliness, lack of 26 exhaustion, and noncognizability of claims), the interests of justice do not 27 mandate forwarding this action to the circuit court for a near-certain denial 28 4 Case 2:22-cv-02604-DDP-MRW Document 8 Filed 02/22/23 Page5of5 Page ID #:246

1 | of authorization. While Petitioner is free to seek permission on his own via 2 | anew application (as the magistrate judge previously advised him), there 3 | is no basis for the Court to do this for him. 4 13. Because the Court does not have jurisdiction to consider the 5 | merits of Petitioner’s habeas claims, it declines to take up the additional 6 | defects with the new petition. 7 kK * 8 14. The Court lacks jurisdiction to consider Petitioner’s successive 9 | petition. The action is DISMISSED without prejudice on that basis. 10 IT IS SO ORDERED. 11 12 hy bens 13 | Dated: February 22, 2023 14 HON. DEAN D. PREGERSON

SENIOR U.S. DISTRICT JUDGE

15 16 Presented by: 17 | Ut 19

HON. MICHAEL R. WILNER

20 | UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28