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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

10 11 DWIGHT M. MCDOWELL, ) Case No. 2:20-cv-00033-DMG-JC ) 12 Petitioner, ) ) ORDER DISMISSING PETITION 13 v. ) FOR WRIT OF HABEAS CORPUS ) AND ACTION WITHOUT 14 WARREN L. MONTGOMERY, ) PREJUDICE ) 15 ) Respondent.__ ) 16

I. SUMMARY

17 On January 2, 2020, petitioner Dwight M. McDowell, a California prisoner 18 who is proceeding pro se, formally filed a Petition for Writ of Habeas Corpus 19 (“Current Federal Petition”). The Current Federal Petition challenges a 2008 state 20 judgment in Los Angeles County Superior Court Case No. BA335672 (“State 21 Case” or “State Conviction”). 22 Based on the record (including facts as to which this Court takes judicial 23 notice as detailed below) and the applicable law, the Current Federal Petition and 24 this action are dismissed without prejudice for lack of jurisdiction because 25 petitioner did not obtain the requisite authorization from the Court of Appeals to 26 file a successive petition. Further, the Clerk of the Court is directed to refer the 27 /// 28 1 Current Federal Petition to the United States Court of Appeals for the Ninth Circuit 2 (“Ninth Circuit”) pursuant to Ninth Circuit Rule 22-3(a).1 3 II. PROCEDURAL HISTORY2 4 A. The State Case and Related State Court Proceedings 5 On June 25, 2008, a Los Angeles County Superior Court jury found 6 petitioner guilty of the attempted murder of Melvin Rivera (count 1) and the 7 attempted voluntary manslaughter of Dani Alexander Espinoza (a lesser included 8 offense of the attempted murder charged in count 2). The jury also found true 9 allegations that (1) petitioner personally and intentionally discharged a firearm 10 causing great bodily injury to Rivera; (2) petitioner personally used a firearm in the 11 commission of the attempted voluntary manslaughter of Espinoza; and (3) both 12 offenses were committed for the benefit of, at the direction of, or in association 13 with a criminal street gang to promote, further or assist a gang (“gang 14 enhancements”).3 The trial court sentenced petitioner to a term of 22 years and 15 eight months, plus 25 years to life in state prison. 16 /// 17 18 1Ninth Circuit Rule 22-3(a) provides in pertinent part: “Any petitioner seeking 19 authorization to file a second or successive 2254 petition . . . in the district court must file an application in the Court of Appeals demonstrating entitlement to such leave under 28 U.S.C. 20 § 2254 . . . . If a second or successive petition . . . is mistakenly submitted to the district court, 21 the district court shall refer it to the [C]ourt of [A]ppeals.” 22 2The procedural history set forth in this section is derived from the Current Federal Petition and supporting documents and the public docket and court records in the following cases 23 in the Central District of California (“CDCA”) and the Ninth Circuit, of which this Court takes 24 judicial notice: (1) Dwight McDowell v. Martin Biter, CDCA Case No. 2:12-cv-02457-GAF-JC (“First Federal Action”); and (2) Dwight McDowell v. Martin Biter, Ninth Circuit Case No. 14- 25 56276 (“Ninth Circuit Action”). See Fed. R. Evid. 201; Harris v. County of Orange, 682 F.3d 26 1126, 1131-32 (9th Cir. 2012) (court may take judicial notice of undisputed matters of public record including documents on file in federal or state courts). 27 3The jury found not true an allegation that the attempted murder of Rivera was committed 28 willfully, deliberately, and with premeditation. 2 1 On December 18, 2009, the California Court of Appeal affirmed the 2 judgment in a reasoned decision. On February 24, 2010, the California Supreme 3 Court denied review without comment. 4 Petitioner thereafter sought, and was denied habeas relief in the Los Angeles 5 County Superior Court, the California Court of Appeal, and the California 6 Supreme Court. 7 B. First Federal Action and Ninth Circuit Action 8 On March 21, 2012, petitioner filed a Petition for Writ of Habeas Corpus in 9 the First Federal Action in which petitioner challenged the judgment in the State 10 Case (“First Federal Petition”). On July 2, 2014, the assigned District Judge 11 accepted the United States Magistrate Judge’s Report and Recommendation 12 recommending denial of the First Federal Petition on the merits and dismissal with 13 prejudice. On July 9, 2014, judgment was enter denying the First Federal Petition 14 and dismissing the First Federal Action with prejudice. The District Judge also 15 denied petitioner a certificate of appealability. 16 On July 31, 2014, petitioner filed a notice of appeal. On March 23, 2015, 17 the Ninth Circuit denied petitioner’s request for a certificate of appealability in the 18 Ninth Circuit Action. 19 C. Current Federal Petition 20 As noted above, on January 2, 2020, petitioner formally filed the Current 21 Federal Petition which again challenges the judgment in the State Case. The 22 record does not reflect that petitioner has obtained authorization from the Ninth 23 Circuit to file the Current Federal Petition in District Court.4 24 /// 25 /// 26 27 4A search of the court’s PACER system does not reflect that petitioner has been granted 28 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 F.3d 1270, 12 1274 (9th Cir. 2001) (per curiam) (citing United States v. Allen, 157 F.3d 661, 664 13 (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). 11 The First Federal Petition in the First Federal Action was denied on its 12 merits – not for a technical or procedural reason. Accordingly, the Current Federal 13 Petition is successive. Since petitioner filed the Current Federal Petition without 14 authorization from the Ninth Circuit, this Court lacks jurisdiction to consider it. 15 IV. ORDER 16 IT IS THEREFORE ORDERED that the Current Federal Petition and this 17 action are dismissed without prejudice. The Clerk of the Court is directed to refer 18 the Current Federal Petition to the Ninth Circuit pursuant to Ninth Circuit Rule 22- 19 3(a). 20 21 DATED: May 4, 2020 22 ______________________________________ 23

DOLLY M. GEE

24 UNITED STATES DISTRICT JUDGE 25 26 27 28 5