I. BACKGROUND

18 On May 1, 2019, the Court received a Petition for Writ of Habeas Corpus by a 19 Person in State Custody (“Petition”) pursuant to 28 U.S.C. § 2254 from Marco 20 Antonio Saucedo (“Petitioner”). Petitioner seeks habeas relief from his current state 21 custody, which arises from his 2013 conviction in Riverside County Superior Court 22 for vehicular manslaughter while intoxicated.1 Pet. at 1, Dkt. No. 1. The Petition 23

24 1 The Petition states that Petitioner was convicted in 2011. Pet. at 1. However, an examination of the state court records shows that the trial court entered judgment in 25 2013. See https://appellatecases.courtinfo.ca.gov/search/case/trialCourt.cfm? 26 dist=42&doc_id=2060396&doc_no=E059903&request_token=NiIwLSIkTkw3W1 BFSCNNWE1IMDw6UlxbJiBOIzpTQCAgCg%3D%3D. The Court takes judicial 27 notice of the state records and as well as the records of this Court and those of the 28 Court of Appeals for the Ninth Circuit, as necessary herein. See Fed. R. Evid. 1 raises a single ground for relief, namely that the trial court erred in instructing the 2 jury on the elements of manslaughter. Pet. at 6. 3 The records of this Court establish that Petitioner has filed a previous habeas 4 action concerning his 2013 conviction and sentence. See Saucedo v. Director of 5 CDCR, No. 5:16-cv-01873-DSF-AFM (C.D. Cal. Sept. 1, 2016). In the prior case, 6 the Court denied with prejudice the operative petition. See Order Accepting Findings 7 and Recommendations of United States Magistrate Judge, Saucedo v. Hatton, No. 8 5:16-cv-01873-DSF-AFM (C.D. Cal. Sept. 8, 2017), Dkt. Nos. 21-22. 9 On July 16, 2019, Respondent filed a motion to dismiss the Petition as 10 successive (“Motion”). Dkt. No. 11. Petitioner opposes the Motion on the ground 11 that his lack of understanding of the English language prevented him from asserting 12 the new ground raised in the Petition. Opp’n, Dkt. No. 15 at 2. 13 A review of the Petition demonstrates that Petitioner again seeks federal 14 habeas relief concerning the same 2013 conviction and sentence at issue in 15 Petitioner’s 2016 habeas action. Neither the Petition itself nor the records of the 16 Ninth Circuit Court of Appeals establish that Petitioner has authorization to bring a 17 successive petition in this Court. 18 II. DISCUSSION 19 The United States Supreme Court has explained: 20 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a stringent set of procedures that a 21 prisoner “in custody pursuant to the judgment of a State 22 court,” 28 U.S.C. § 2254(a), must follow if he wishes to file a “second or successive” habeas corpus application 23 challenging that custody, § 2244(b)(1). In pertinent part, 24 before filing the application in the district court, a prisoner “shall move in the appropriate court of appeals for an order 25 authorizing the district court to consider the application.” 26 § 2244(b)(3)(A). A three-judge panel of the court of 27 201(b)(2); Harris v. Cty. of Orange, 682 F.3d 1126, 1131-32 (9th Cir. 2012); United 28 States v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). 1 appeals may authorize the filing of the second or successive application only if it presents a claim not previously raised 2 that satisfies one of the two grounds articulated in 3 § 2244(b)(2). § 2244(b)(3)(C); Gonzalez v. Crosby, 545 U.S. 524, 529-530, 125 S. Ct. 2641, 162 L. Ed. 2d 480 4 (2005); see also Felker v. Turpin, 518 U.S. 651, 656-657, 5 664, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). 6 Burton v. Stewart, 549 U.S. 147, 152-53, 127 S. Ct. 793, 166 L. Ed. 2d 628 (2007). 7 The Court finds that the Petition is clearly a “second or successive” habeas 8 petition. Moreover, the Petition and records of the Ninth Circuit establish that 9 Petitioner has not been granted authorization by the Ninth Circuit to file a successive 10 petition to raise his new claim. 11 In his Opposition to Respondent’s Motion, Petitioner contends that he is 12 entitled to a “gateway privilege as codified in [28 U.S.C.] § 2244(b)(2)(A) and (B)” 13 because he is unable to speak, read, or write the English language. Id. at 1-2. A 14 petitioner may overcome the procedural hurdle to a successive petition if he makes a 15 proper showing of actual innocence. Schlup v. Delo, 513 U.S. 298, 320-21, 115 S. 16 Ct. 851, 130 L. Ed. 2d 808 (1995) (“[A] habeas court must adjudicate even a 17 successive habeas claim when required to do so by the ‘ends of justice.’”) (citations 18 omitted); McQuiggins v. Perkins, 569 U.S. 383, 386, 133 S. Ct. 1924, 185 L.Ed.2d 19 1019 (2013) (“We hold that actual innocence, if proved, serves as a gateway through 20 which a petitioner may pass” through a procedural hurdle). 21 Under the actual innocence exception to the filing of a successive petition, a 22 petitioner must demonstrate that “more likely than not, in light of the new evidence, 23 no juror, acting reasonably, would have voted to find him guilty beyond a reasonable 24 doubt.’” McQuiggins, 569 U.S. at 386. Here, Petitioner is asserting that limited 25 English language skills prevented him from timely raising his claim of jury 26 instruction error. Without addressing the merits of Petitioner’s allegations regarding 27 lack of language skills, the Court finds that the Petition raises a claim of legal error, 28 not factual innocence. See Bousley v. United States, 523 U.S. 614, 623 (1998) 1 (“‘Actual innocence’ means factual innocence, not mere legal insufficiency.”); 2 Marrero v. Ives, 682 F.3d 1190, 1193 (9th Cir. 2012) (same). Accordingly, it does 3 not appear that the actual innocence exception to filing a successive petition would 4 apply here, although this is a determination for the Ninth Circuit to make. 5 Because Petitioner has not obtained authorization to file the instant Petition, 6 the Court finds that it lacks jurisdiction. See Burton, 549 U.S. at 152-53. Therefore, 7 the reference to the Magistrate Judge is vacated, and the Petition is dismissed for lack 8 of jurisdiction. The Clerk is directed to enter judgment dismissing the Petition. 9 Because the Court must dismiss the Petition, any pending motions are denied as 10 moot. 11 III. CERTIFICATE OF APPEALABILITY 12 Under AEDPA, a state prisoner seeking to appeal a district court’s final order 13 in a habeas corpus proceeding must obtain a Certificate of Appealability (“COA”) 14 from the district judge or a circuit judge. 28 U.S.C. § 2253(c)(1)(A). A COA may 15 issue “only if the applicant has made a substantial showing of the denial of a 16 constitutional right.” 28 U.S.C. § 2253(c)(2). “A petitioner satisfies this standard by 17 demonstrating that jurists of reason could disagree with the district court’s resolution 18 of his constitutional claims or that jurists could conclude the issues presented are 19 adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 20 U.S. 322, 327, 123 S. Ct. 1029, 154 L. Ed. 2d 931 (2003). 21 When the Court dismisses a petition on procedural grounds, it must issue a 22 COA if the petitioner shows: (1) “that jurists of reason would find it debatable 23 whether the petition states a valid claim of the denial of a constitutional right”; and 24 (2) “that jurists of reason would find it debatable whether the district court was 25 correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 478, 120 S. Ct. 26 1595, 146 L. Ed. 2d 542 (2000). 27 Here, the Court is dismissing the Petition without prejudice because it is a 28 successive petition without proper authorization from the Ninth Circuit. Since the 1 || Petition is patently a successive petition, Petitioner cannot make the requisite 2 || showing that jurists of reason would find it debatable whether the district court was 3 || correct in its procedural ruling. 4 IV. ORDER 5 Based on the foregoing, IT IS ORDERED THAT: 6 1. The Petition is DISMISSED without prejudice for lack of jurisdiction; and 7 2. A Certificate of Appealability is DENIED. 8 9 IT IS SO ORDERED. 10 | DATED: September 18, 2019 i Q J fe wee □□ 11 Honorable Dale S. Fischer

UNITED STATES DISTRICT JUDGE

13 || Presented by: Rapedin Qn. Q?¢

16 | ROZELLA A.OLIVER 4 UNITED STATES MAGISTRATE JUDGE

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