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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 RUBEN SERVIN, ) Case No. 2:20-cv-02494-PSG-JC 11 ) Petitioner, ) 12 ) ORDER DISMISSING PETITION v. ) FOR WRIT OF HABEAS 13 ) CORPUS AND ACTION ) WITHOUT PREJUDICE 14 G. MATTESON, ) ) 15 ) Respondent. ) 16 ________________________________

17 I. SUMMARY 18 On March 16, 2020, petitioner Ruben Servin, who is proceeding pro se, filed 19 a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a Person in State 20 Custody (“Current Federal Petition”). Petitioner challenges the judgment in Los 21 Angeles County Superior Court Case No. VA077024 (“State Case”), essentially 22 claiming that the judgment in the State Case is void and the State was without 23 jurisdiction because the case was initiated by way of a felony complaint which 24 failed to give petitioner notice of the charges against him. Petitioner claims that he 25 is being held in custody without due process and is entitled to immediate release. 26 /// 27 /// 28 1 Based on the record (including facts as to which this Court takes judicial 2 notice as detailed below) and the applicable law, the Current Federal Petition and 3 this action are dismissed without prejudice for lack of jurisdiction because 4 petitioner did not obtain the requisite authorization from the Court of Appeals to 5 file a successive petition. Further, the Clerk of the Court is directed to refer the 6 Current Federal Petition to the United States Court of Appeals for the Ninth Circuit 7 (“Ninth Circuit”) pursuant to Ninth Circuit Rule 22-3(a).1 8 II. PROCEDURAL HISTORY2 9 On October 18, 2004, a Los Angeles County Superior Court jury in the State 10 Case found petitioner guilty of first degree murder, torture, second degree robbery, 11 first degree robbery, first degree burglary, and dissuading a witness from reporting 12 a crime. The jury also found true (1) a special circumstance allegation that 13 petitioner committed the murder while engaged in the commission of a robbery; (2) 14 a special circumstance allegation that the murder was intentional and involved the 15 infliction of torture; and allegations that (3) in the commission of each of the 16 charged offenses a principal was armed with a handgun; (4) in the commission of 17 the second degree robbery, petitioner personally inflicted great bodily injury on 18 Miguel Trejo; (5) in the commission of the first degree robbery, petitioner 19 voluntarily acted in concert and entered an inhabited dwelling; and (6) during the 20 commission of the first degree burglary, a person, other than an accomplice, was 21 22 1Ninth Circuit Rule 22-3(a) provides in pertinent part: “Any petitioner seeking authorization to file a second or successive 2254 petition . . . in the district court must file an 23 application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. 24 § 2254 . . . . If a second or successive petition . . . is mistakenly submitted to the district court, the district court shall refer it to the [C]ourt of [A]ppeals.” 25 2The facts and procedural history set forth in this section are derived from the Current 26 Federal Petition and supporting documents and court records in Rubin Servin v. Tony Hedgpeth, 27 Central District of California Case No. 2:08-cv-01446-PSG-JC (“First Federal Action”), of which this Court takes judicial notice. See Fed. R. Evid. 201; United States v. Wilson, 631 F.2d 28 118, 119 (9th Cir. 1980) (court may take judicial notice of court records in other cases). 2 1 present in the residence at the time of the burglary. On November 17, 2004, the 2 trial court sentenced petitioner to life without the possibility of parole plus 11 years 3 to life in state prison. 4 On June 29, 2006, the California Court of Appeal affirmed the judgment. 5 On October 18, 2006, the California Supreme Court denied review. Petitioner 6 thereafter sought, and was denied habeas relief in the California Supreme Court. 7 On February 29, 2008, petitioner initiated the First Federal Action 8 challenging the judgment in the State Case. On December 11, 2008, petitioner 9 filed a Second Amended Petition for Writ of Habeas Corpus which was the 10 operative pleading in the First Federal Action (hereinafter referred to as the 11 “Operative First Federal Petition”) and asserted seven (17) primary grounds for 12 relief. On February 28, 2011, the Magistrate Judge issued a lengthy Report and 13 Recommendation recommending denial of the Operative First Federal Petition on 14 the merits and dismissal of the First Federal Action with prejudice. On August 4, 15 2011, the District Judge adopted the Report and Recommendation, denied the 16 Operative First Federal Petition on the merits, and dismissed the First Federal 17 Action with prejudice. Judgment was entered accordingly on the same date. The 18 District Court also denied petitioner a certificate of appealability. Petitioner did 19 not appeal. 20 As noted above, on March 16, 2020, petitioner filed the Current Federal 21 Petition which again challenges the judgment in the State Case. 22 The record does not reflect that petitioner has obtained authorization from 23 the Ninth Circuit to file the Current Federal Petition in District Court.3 24 /// 25 /// 26 27 3A search of the court’s PACER system does not reflect that petitioner has sought or been 28 granted leave to file a second or successive petition by the Ninth Circuit. 3 1 III. DISCUSSION 2 Before a habeas petitioner may file a second or successive petition in a 3 district court, he must apply to the appropriate court of appeals for an order 4 authorizing the district court to consider the application. Burton v. Stewart, 549 5 U.S. 147, 152-53 (2007) (citing 28 U.S.C. § 2244(b)(3)(A)). This provision 6 “creates a ‘gatekeeping’ mechanism for the consideration of second or successive 7 applications in district court.” Felker v. Turpin, 518 U.S. 651, 657 (1996); see also 8 Reyes v. Vaughn, 276 F. Supp. 2d 1027, 1028-30 (C.D. Cal. 2003) (discussing 9 applicable procedures in Ninth Circuit). A district court lacks jurisdiction to 10 consider the merits of a second or successive habeas petition in the absence of 11 proper authorization from a court of appeals. Cooper v. Calderon, 274 12 F.3d 1270, 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 13 F.3d 661, 664 (9th Cir. 1998)), cert. denied, 538 U.S. 984 (2003). 14 The court of appeals may authorize the filing of a second or successive 15 petition only if it determines that the petition makes a prima facie showing that at 16 least one claim within the petition satisfies the requirements of 28 U.S.C. 17 Section 2244(b), i.e., that a claim which was not presented in a prior application 18 (1) relies on a new rule of constitutional law, made retroactive to cases on 19 collateral review by the Supreme Court; or (2) the factual predicate for the claim 20 could not have been discovered previously through the exercise of due diligence 21 and the facts underlying the claim would be sufficient to establish that, but for 22 constitutional errors, no reasonable factfinder would have found the applicant 23 guilty of the underlying offense. Nevius v. McDaniel, 104 F.3d 1120, 1120-21 24 (9th Cir. 1997); Nevius v. McDaniel, 218 F.3d 940, 945 (9th Cir. 2000). 25 A second or subsequent habeas petition is not considered “successive” if the 26 initial habeas petition was dismissed for a technical or procedural reason, rather 27 than on the merits. See Slack v. McDaniel, 529 U.S. 473, 485-487 (2000) (second 28 habeas petition not “successive” if initial habeas petition dismissed for failure to 4 1 || exhaust state remedies); Stewart v. Martinez- Villareal, 523 U.S. 637, 643-645 2 || (1998) (second habeas petition not “successive” if claim raised in first habeas 3 || petition dismissed as premature); but see McNabb v. Yates, 576 F.3d 1028, 1030 4 || (9th Cir. 2009) (dismissal on statute of limitations grounds constitutes disposition 5 || on the merits rendering subsequent petition “second or successive”); Henderson v. 6 || Lampert, 396 F.3d 1049, 1053 (9th Cir.) (dismissal on procedural default grounds 7 || constitutes disposition on the merits rendering subsequent petition “second or 8 || successive’’), cert. denied, 546 U.S. 884 (2005); Plaut v. Spendthrift Farm, Inc., 9 | 514 U.S. 211, 228 (1995) (dismissal for failure to prosecute treated as judgment on 10 || the merits) (citations omitted). 1] The Operative First Federal Petition in the First Federal Action was denied 12 || on its merits — not for a technical or procedural reason. Accordingly, the Current 13 || Federal Petition is successive. Since petitioner filed the Current Federal Petition 14 || without authorization from the Ninth Circuit, this Court lacks jurisdiction to 15 || consider it. 16] IV. ORDER 17 IT IS THEREFORE ORDERED that the Current Federal Petition and this 18 || action are dismissed without prejudice. The Clerk of the Court is directed to refer 19 || the Current Federal Petition to the Ninth Circuit pursuant to Ninth Circuit Rule 22- 20 3(a). 21 IT IS SO ORDERED. 22 23 || DATED: April 8, 2020 A EK fl 25 26 UNITED STATES DISTRICT JUDGE 27 28