BACKGROUND

22 Petitioner Michael Anthony Powell is currently serving a life term in state 23 prison based on his 1999 murder conviction. [Doc. # 1 at 2.1] 24 Petitioner previously sought habeas relief in this Court regarding that 25 conviction. The Court denied Petitioner’s habeas petition on the merits. Powell

26 v.Lamarque, No. CV 02-8231-ABC (MAN) (C.D. Cal.). The Ninth Circuit Court 27 28 1 Citations to the record are to the CM/ECF pagination. 1 of Appeals denied a certificate of appealability in that action. CV 02-8231, [Doc. 2 # 35]. 3 In 2022, Petitioner filed an application in the state superior court for 4 resentencing pursuant to California Penal Code § 1172.6. The superior court 5 denied the request. The state appellate court affirmed the denial of resentencing. 6 [Doc. # 13 at 11.] 7 Petitioner also sought habeas relief in the state court system in 2022 and 8 2023. The state supreme court ultimately denied relief by noting that Petitioner 9 raised claims that had previously been rejected on direct appeal. Id. at 12. 10 In the current federal habeas action, Petitioner alleges sufficiency of 11 evidence and instructional errors related to his original 1999 trial (Grounds Two 12 and Four). Petitioner further asserts claims of ineffective assistance of counsel 13 and due process violations in connection with the recent resentencing proceedings 14 (Grounds One and Three). [Doc. # 1.] 15 Hon. Michael R. Wilner, United States Magistrate Judge, screened the 16 current petition. [Doc. # 5.] Judge Wilner noted that the action appeared to be 17 successive and was not accompanied by a certificate from the Ninth Circuit 18 authorizing a second habeas action under 28 U.S.C. § 2244. Judge Wilner further 19 noted that Petitioner’s resentencing-based claims were likely not cognizable on 20 federal habeas review. Id. at 2–3. 21 Petitioner submitted a supplemental memorandum. [Doc. # 9.] In his 22 statement, Petitioner contended that his original habeas action was denied for a 23 technical error and “not decided on the merits.” Id. at 1. While the bulk of the 24 statement was not wholly intelligible, Petitioner claimed that the petition 25 adequately identified a “constitutional error.” Id. at 2. 26 The Attorney General moved to dismiss the action. [Doc. # 13.] The 27 Attorney General contends that Grounds Two and Four in the petition are 28 1 successive under 28 U.S.C. § 2244. The Attorney General also argues that 2 Grounds One and Three in the petition do not present a federal constitutional claim 3 upon which relief may be granted. 4 DISCUSSION 5 If it “appears from the application that the applicant or person detained is 6 not entitled” to habeas relief, a court may summarily dismiss a habeas action. 28 7 U.S.C. § 2243; see also Local Civil Rule 72-3.2 (a magistrate judge may submit 8 proposed order for summary dismissal to district judge “if it plainly appears from 9 the face of the petition [ ] that the petitioner is not entitled to relief”). 10 A. Successiveness 11 Under federal law, a state prisoner is generally required to present all 12 constitutional challenges to a state conviction in a single federal action. “Before 13 a second or successive [habeas petition] is filed in the district court, the applicant 14 shall move in the appropriate court of appeals for an order authorizing the district 15 court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). 16 A prisoner must obtain authorization from the Court of Appeals to pursue 17 such a successive habeas petition before the new petition may be filed in district 18 court. Id.; Burton v. Stewart, 549 U.S. 147, 156 (2007) (district court without 19 jurisdiction to consider successive habeas action). “If the petition is second or 20 successive, then the district court lacks jurisdiction and must dismiss the petition 21 unless and until the court of appeals grants an application to file it.” Brown v. 22 Muniz, 889 F.3d 661, 667, 676 (9th Cir. 2018) (“petitioner’s burden is higher” 23 under statute to bring successive habeas action); Prince v. Lizzaraga, 733 F. 24 App’x 382, 384 (9th Cir. 2018) (prisoner “must first apply to this [appellate] court 25 for permission to have his petition heard in the district court”). 26 Two of Petitioner’s claims are successive. He raised Grounds Two and 27 Four of the current petition in his earlier federal habeas action. Contrary to 28 1 Petitioner’s assertion, the Court denied relief in that action (CV 02-8231) on the 2 merits over 20 years ago. That makes make the current action successive. 3 McNabb, 576 F.3d at 1030. Petitioner presents no proof that he received 4 permission from the Ninth Circuit to pursue another successive action. If 5 Petitioner contends that he has “new evidence” or additional reasons to present 6 these claims again in this district court, he must present that argument to the 7 appellate court in the first instance. Prince, 733 F. App’x at 384. The successive 8 claims in the current petition are dismissed for lack of jurisdiction.2 28 U.S.C. § 9 2244(b); Brown, 889 F.3d at 667. 10 B. Failure to State a Claim 11 A state prisoner must fairly present a federal constitutional claim for habeas 12 consideration. Rose v. Lundy, 455 U.S. 509 (1982). A prisoner cannot “transform 13 a state-law issue into a federal one merely by asserting a violation of due process.” 14 Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). As a result, federal habeas 15 relief is “unavailable for an alleged error in the interpretation or application of 16 state law.” Windham v. Merkle, 163 F.3d 1092, 1107 (9th Cir. 1998). 17 California Penal Code § 1172.6 permits individuals convicted of murder 18 under certain specified imputed malice legal theories (felony murder, natural and 19 probable consequences doctrine) to petition for resentencing. Nonetheless, “a 20 state court’s allegedly erroneous denial of resentencing under Cal. Penal Code 21 § 1172.6 does not raise an issue cognizable on federal habeas review.” Rangel v. 22 Cruz, No. CV 23-03754 DSF (JDE), 2023 WL 3828776 at *1 (C.D. Cal. 2023) 23 (citations omitted); Walker v. California Supreme Ct., No. CV 22-4838 CAS (E), 24 2022 WL 11337927 at 2 (C.D. Cal. 2022) (same; collecting cases). 25 Furthermore, as a matter of statutory law, “the ineffectiveness or 26 incompetence of counsel during Federal or State collateral post-conviction

27 2 Because this Court does not have jurisdiction over Grounds Two and Four, it declines to take up the Attorney General’s alternative arguments 28 regarding the untimeliness of the claims. 1 proceedings” does not state a claim cognizable on federal habeas review. 28 2 U.S.C. § 2254(i). As such, “a petition cannot claim constitutionally ineffective 3 assistance of counsel in” a resentencing proceeding. Coleman v. Thompson, 501 4 U.S. 722, 752; Issac v. Atchley, No. CV 22-00570 CAS (JEM), 2023 WL 2169104 5 at *3 (C.D. Cal. 2023); Doughton v. Montgomery, 2021 WL 3186567, at *3 (E.D. 6 Cal. 2021). 7 Neither of Petitioner’s remaining claims in the current petition advances a 8 legitimate constitutional claim. Count Three challenges the outcome of 9 Petitioner’s resentencing proceedings. That is a state law issue which raises no 10 federal constitutional issue.3 Windham, 163 F.3d at 1107; Rangel, 2023 WL 11 3828776 at *1; Walker, 2022 WL 11337927 at 2. 12 Finally, Petitioner’s contention that his lawyer was ineffective during his 13 post-conviction resentencing proceedings (Ground One) is simply untenable. The 14 plain text of AEDPA and the Supreme Court have clearly stated that there is no 15 constitutional claim in that circumstance. 28 U.S.C. § 2254(i); Coleman, 501 U.S. 16 at 752; Issac, 2023 WL 2169104 at *3. 17 Petitioner’s remaining arguments of supposed constitutional error are too 18 conclusory to plausibly state a claim for relief. Langford, 110 F.3d at 1389. 19 /// 20 21 22 23 24 25 26 3 According to the state appellate court, Petitioner was not convicted 27 under either of the legal theories specified in the statute. On that basis, Petitioner was ineligible for relief as a matter of that state law. People v. Powell, 28 No. B304587) (Cal. App. 2021). 1 CONCLUSION 2 Based on the successive nature of two of Petitioner’s claims and the failure 3 | to state a constitutional claim in the remaining claims, Petitioner is not entitled to 4 | pursue habeas relief. The action must be and is DISMISSED. The pending 5 | motion to dismiss [Doc. # 13] is DENIED AS MOOT. 6 IT ISSO ORDERED. 7 8 | DATED: November 13, 2023 Kelly Jn . ew. 9 DOLLY MfGEE 10 UNITED®STATES DISTRICT JUDGE

Presented by: 12 Wl 14 15 | HON. MICHAEL R. WILNER 16 UNITED STATES MAGISTRATE JUDGE

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