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5 JS-6 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 23-4179 JFW (MRW) 13 FELTON HUMPHRIES,

ORDER DISMISSING ACTION

14 Petitioner,

WITHOUT PREJUDICE

15 v. 16 DAN SAMUELS, 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. Petitioner is currently serving a life term in state prison based 23 on his 2016 conviction for first degree murder. 24 2. In this federal habeas action, Petitioner alleges claims of 25 prosecutorial misconduct and ineffective assistance of counsel related to his 26 original trial. (Docket # 1.) 27 28 1 3. Petitioner previously sought habeas relief in this Court 2 regarding his murder conviction. The Court denied Petitioner’s earlier 3 habeas petition on the merits of the claims asserted. Humphries v. 4 Sherman, No. CV 18-5748 JFW (JEM) (C.D. Cal.). The Ninth Circuit Court 5 of Appeals denied a certificate of appealability in that action. (CV 18-5748, 6 Docket # 23.) 7 4. Magistrate Judge Wilner screened the petition in the current 8 action. (Docket # 6.) Judge Wilner noted that the action appeared to be 9 successive, and was not accompanied by a certificate from the Ninth 10 Circuit authorizing a second habeas action under 28 U.S.C. § 2244. 11 5. Petitioner submitted a supplemental statement regarding the 12 petition. (Docket # 8.) In his statement, Petitioner acknowledged that he 13 erred in filing the present action “without [a] statement of permission from 14 the Ninth Circuit Court of Appeals.” (Id. at 2.) Petitioner suggested that 15 he had been misled by his appellate lawyer to believe that he could pursue 16 additional claims on federal review after the conclusion of his original 17 habeas action in this Court.1 (Id.) The remainder of the statement 18 addressed the merits of Petitioner’s new claims. 19 6. Petitioner did not indicate that he ever sought or received a 20 certificate to pursue a second or successive habeas action in this Court. 21 * * * 22 7. If it “appears from the application that the applicant or person 23 detained is not entitled” to habeas relief, a court may summarily dismiss a 24 habeas action. 28 U.S.C. § 2243; see also Local Civil Rule 72-3.2 25 (magistrate judge may submit proposed order for summary dismissal to 26 1 A fair reading of the lawyer’s letter (attached to the supplemental 27 statement) suggests that the lawyer correctly advised Petitioner that claims Petitioner presented to the state supreme court on direct appeal had been 28 preserved for federal habeas review in the original action. (Docket # 8 at 7.) 1 district judge “if it plainly appears from the face of the petition [ ] that the 2 petitioner is not entitled to relief”). 3 8. Under federal law, a state prisoner is generally required to 4 present all constitutional challenges to a state conviction in a single federal 5 action. “Before a second or successive [habeas petition] is filed in the 6 district court, the applicant shall move in the appropriate court of appeals 7 for an order authorizing the district court to consider the application.” 8 28 U.S.C. § 2244(b)(3)(A). 9 9. A prisoner must obtain authorization from the Court of 10 Appeals to pursue such a successive habeas petition before the new petition 11 may be filed in district court. Id.; Burton v. Stewart, 549 U.S. 147, 156 12 (2007) (district court without jurisdiction to consider successive habeas 13 action when prisoner “neither sought nor received authorization from the 14 Court of Appeals before filing”). 15 10. “If the petition is second or successive, then the district court 16 lacks jurisdiction and must dismiss the petition unless and until the court 17 of appeals grants an application to file it.” Brown v. Muniz, 889 F.3d 661, 18 667, 676 (9th Cir. 2018) (“petitioner’s burden is higher” under statute to 19 bring successive habeas action); Prince v. Lizzaraga, 733 F. App’x 382, 384 20 (9th Cir. 2018) (prisoner “must first apply to this [appellate] court for 21 permission to have his petition heard in the district court”). 22 * * * 23 11. Petitioner’s current habeas action is subject to summary 24 dismissal. The petition challenges the same murder conviction that was 25 the subject of his earlier federal habeas action. That action (CV 18-5748) 26 was denied on the merits several years ago. This makes make the current 27 action successive. McNabb, 576 F.3d at 1030. Petitioner presents no proof 28 1 || that he asked for or received permission from the Ninth Circuit to pursue 2 | another successive action. Moreover, Petitioner’s contentions about the 3 | guidance that his appellate lawyer provided him do not provide a basis for 4 | this Court to allow him to pursue the current claims. The successive action 5 | must be dismissed. 28 U.S.C. § 2244(b); Brown, 889 F.3d at 667; Prince, 6 | 733 F. App’x at 384. 7 ok ok 8 The Court does not have jurisdiction to consider Petitioner’s claims. 9 | The action is DISMISSED without prejudice as successive.” 10 IT IS SO ORDERED. 11 12 13 Dated: July 17, 2023 : 7 FON JOHN F. WALTER 14 ITED STATES DISTRICT JUDGE 15 16 | Presented by: 17 it — 19 | HON. MICHAEL R. WILNER 29 | UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27| 2 ~The Court declines to transfer the action to the Ninth Circuit, as there is no basis to conclude that Petitioner “mistakenly submitted” this motion 28 | to the district court instead of the appellate court. Ninth Circuit Rule 22-3(a).