1 2 3 4 5 6 7

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

11 ) 4 DERREK HOLMES, Case No. EDCV 20-0143-JGB (JEM) 13 Petitioner ORDER ACCEPTING FINDINGS AND | Srareanmeerate Suste 15 RALPH DIAZ, 16 Respondent. 17 48 Pursuant to 28 U.S.C. Section 636, the Court has reviewed the pleadings, the 19 records on file, and the Report and Recommendation of the United States Magistrate 50 Judge. No Objections to the Report and Recommendation have been filed within the time allowed for Objections. The Court accepts the findings and recommendations of the 59 Magistrate Judge. 33 Based on the foregoing, IT iS HEREBY ORDERED: (1) | Respondent’s Motion to Dismiss is GRANTED. 35 (2) | Pursuant to Ninth Circuit Rule 22-3(a), the Court hereby REFERS the Petition 36 to the Ninth Circuit for consideration as an application for leave to file a second or 57 successive habeas corpus petition. 28

1 “Petitioner is advised that this referral alone does not constitute compliance with Circuit Rule 22-3 and 28 U.S.C. § 2255(h). Petitioner must still file a motion for leave to proceed in the Court of Appeals and make the requisite showing” to convince the Ninth 41 Circuit to grant him leave to file this second-or-successive habeas petition.” Henderson v. S| Madden, No. LA CV 16-02003-VBF (AGR), 2016 WL 4009873, at *3 n.1, *5-6 (C.D. Cal. June 3, 2016) (collecting cases in which Ninth Circuit district courts issued this advisement to pro se habeas petitioners). Petitioner is directed to consult this statute and Ninth Circuit Rule 22-3 for further information. 9 (3) The Clerk shall send copies of the Petition and this Order to the Ninth Circuit. 10] The Clerk also shall mail Petitioner a copy of Ninth Circuit Rule 22-3 and Ninth Circuit Court 11] of Appeals Form 12, entitled “Application for Leave to File Second or Successive Petition 12] Under 28 U.S.C. § 2254 or Motion Under 28 U.S.C. § 2255.” 13 (4) The Petition is DISMISSED without prejudice to its refiling after Petitioner obtains permission to do so from the Ninth Circuit. 15 (5) Judgment shall be entered accordingly. 16 IT IS SO ORDERED. 17 18] DATED: September 22, 2020 ——y- pa 19 SAhL. JUDGE 20 21 22 23 24 25 26 27 28

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

INSTRUCTIONS for Form 12. Application for Leave to File Second or Successive Petition under 28 U.S.C. § 2254 or Motion under 28 U.S.C. § 2255

Read these instructions carefully. 1. The application, whether handwritten or typewritten, must be legible and signed by the applicant under penalty of perjury. An original must be provided to the Clerk of the Ninth Circuit. The application must comply with Circuit Rule 22-3, which is attached to these instructions. 2. All questions must be answered concisely. Add separate sheets if necessary. 3. If this is a capital case, the applicant shall serve a copy of this application and any attachments on respondent and must complete and file the proof of service that accompanies this form. If this is not a capital case, service on the respondent is not required. 4. The proposed 28 U.S.C. § 2254 petition or 28 U.S.C. § 2255 motion that applicant seeks to file in the district court must be included with Form 12. 5. Applicants seeking authorization to file a second or successive section 2254 habeas corpus petition shall include copies of all relevant state court decisions if reasonably available. Mail Form 12 to the court at: Clerk, U.S. Court of Appeals for the Ninth Circuit P.O. Box 193939 San Francisco, CA 94119-3939

Do not file this instruction page

Feedback or questions about this form? Email us at forms@ca9.uscourts. gov Form 12 Instructions 1 Rev. 12/01/18

CIRCUIT RULE 22-3. APPLICATIONS FOR AUTHORIZATION

TO FILE SECOND OR SUCCESSIVE 28 U.S.C. § 2254 PETITION

OR § 2255 MOTION - ALL CASES; STAY OF EXECUTION -

CAPITAL CASES

(a) Applications. An applicant seeking authorization to file a second or successive 28 U.S.C. § 2254 petition or 28 U.S.C. § 2255 motion in the district court must file an application in the court of appeals demonstrating entitlement to such leave under sections 2254 or 2255. See Form 12. An original in paper format of the application must be filed with the Clerk of the court of appeals unless the application is submitted via the Appellate Electronic Filing System. No filing fee is required. If an application for authorization to file a second or successive section 2254 petition or section 2255 motion is mistakenly submitted to the district court, the district court shall refer it to the court of appeals. If an unauthorized second or successive section 2254 petition or section 2255 motion is submitted to the district court, the district court may, in the interests of justice, refer it to the court of appeals. (Rev. 12/1/09; Rev. 7/1/13; Rev. 7/1/16; Rev. 12/1/18) The applicant must: (1) include Form 12 if submitted by an applicant not represented by counsel; (2) include the proposed section 2254 petition or section 2255 motion that the applicant seeks to file in the district court; (3) state as to each claim presented whether it previously has been raised in any state or federal court and, if so, the name of the court and the date of the order disposing of such claim(s); and (4) state how the requirements of sections 2244(b) or 2255 have been satisfied. (b) Attachments. If reasonably available to the applicant, the application must include copies of all relevant state court orders and decisions. (Rev. 12/1/09; Rev 7/1/16) (c) Service. (1) Capital Cases: In capital cases, the applicant must serve a copy of the application, attachments, and proposed section 2254 petition/section 2255 motion on the respondent, and must attach a certificate of service to the application filed with the Court. (Rev. 7/1/16) (2) Noncapital Cases: In noncapital cases, service of the application on the respondent is not required. (New 7/1/16)

Feedback or questions about this form? Email us at forms@ca9.uscourts. gov Form 12 Instructions 2 Rev. 12/01/18

(d) Response. (1) Capital Cases: In capital cases where an execution date is scheduled and no stay is in place, respondent shall respond to the application and file supplemental attachments as soon as practicable. Otherwise, in capital cases, respondent shall respond and file supplemental attachments within 14 days of the date the application is served. (Rev. 12/1/09) (2) Noncapital Cases: In noncapital cases, no response is required unless ordered by the Court. Respondent may include supplemental attachments with its response. (Rev. 7/1/16) (e) Decision. The application will be determined by a three-judge panel. In capital cases where an execution date is scheduled and no stay is in place, the Court will grant or deny the application, and state its reasons therefore, as soon as practicable. (f) Stays of Execution. If an execution date is scheduled and no stay is in place, any judge may, if necessary, enter a stay of execution, see Circuit Rule 22- 2(e), but the question will be presented to the panel immediately. If the Court grants leave to file a second or successive application, the Court shall stay the applicant’s execution pending disposition of the second or successive petition by the district court. (Rev. 12/1/18) Cross Reference: e Circuit Rule 25-5. Electronic Filing on page 84, specifically, Circuit Rule 25- _ 5(b), Documents that may be submitted either electronically or in paper format

CIRCUIT ADVISORY COMMITTEE NOTE TO RULE 22-3

The district court is required to transfer mistakenly filed applications for authorization to file a second or successive section 2254 petition or 2255 motion. If an applicant files a document that appears to be an unauthorized section 2254 petition or 2255 motion and facially alleges a claim based on a new rule of constitutional law or newly discovered evidence of actual innocence, the district court may transfer the filing to the court of appeals in the interests of justice or, in □ the alternative, the district court may dismiss the filing without prejudice to the applicant seeking authorization from the court of appeals on Ninth Circuit Form 12. The rule requires applicants to provide the court of appeals with the proposed petition or motion. Pro se applicants are encouraged to use the form petition or motion adopted by the district court where the applicant anticipates filing the document. (New 7/1/16)

Feedback or questions about this form? Email us at forms@ca9.uscourts. gov Form 12 Instructions 3 Rev. 12/01/18

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Form 12. Application for Leave to File Second or Successive Petition under 28 U.S.C. § 2254 or Motion under 28 U.S.C. § 2255 Instructions for this form: hitp://www.ca9.uscourts.gov/forms/form] 2instructions. pdf 9th Cir. Case Number (to be provided by court) Applicant Name Prisoner Registration Number Address

Name of Respondent (Warden)

You MUST answer the following questions: (1) What conviction(s) are you challenging?

(2)In what court(s) were you convicted of these crime(s)?

(3) What was the date of each of your conviction(s) and what is the length of each sentence?

Feedback or questions about this form? Email us at forms@ca9.uscourts. gov Form 12 1 Rev. 12/01/18

For questions (4) through (10), provide information separately for each of your □ previous §§ 2254 or 2255 proceedings. Use additional pages if necessary. (4) Has the judgment of your conviction or sentence been modified or amended? If yes, when and by what court?

(5) With respect to each conviction and sentence, have you ever filed a petition or motion for habeas corpus relief in federal court under 28 U.S.C. § 2254 or § 2255?

YesL] No

(a) In which federal district court did you file a petition or motion?

(b) What was the docket number?

(c) On what date did you file the petition/motion?

(6) What grounds were raised in your previous habeas proceeding? (list all grounds and issues previously raised in that petition/ motion)

(7)Did the district court hold an evidentiary hearing? YesX] No

Feedback or questions about this form? Email us at forms@cq9.uscourts. gov Form 12 2 Rev. 12/01/18

(8) How did the district court rule on your petition/motion? [] District court dismissed petition/motion. If yes, on what grounds?

L] District court denied petition/motion. LI District court granted relief. If yes, on what claims and what was the relief?

what date did the district court decide your petition/motion?

(10) Did you file an appeal from that disposition? Yes No UH

(a) What was the docket number of your appeal?

(b) How did the court of appeals decide your appeal?

(11) State concisely each and every ground or issue you wish to raise in your current petition or motion for habeas relief. Summarize briefly the facts supporting each ground or issue.

Feedback or questions about this form? Email us at forms@ca9.uscourts. gov Form 12 3 Rev. 12/01/18

(12) For each ground raised, was it raised in the state courts? If so, what did the state courts rule and when? (Attach a copy of all relevant state court decisions, if available)

(13) For each ground/issue raised, was this claim raised in any prior federal petition/motion? (list each ground separately)

(14) For each ground/issue raised, does this claim rely on a new rule of constitutional law? (list each ground separately and give case name and citation for each new rule of law)

(15) For each ground/issue raised, does this claim rely on newly discovered evidence? What is the evidence and when did you discover it? Why has this newly discovered evidence not been previously available to you? (list each ground separately)

Feedback or questions about this form? Email us at forms@ca9.uscourts. gov Form 12 4 Rev. 12/01/18

(16) For each ground/issue raised, does the newly discovered evidence establish your innocence? How?

(17) For each ground/issue raised, does the newly discovered evidence establish a federal constitutional error? Which provision of the Constitution was violated and how?

(18) Provide any other basis for your application not previously stated.

Signature Date

In_capital cases only, proof of service on respondent MUST be attached. A sample proof of service is attached to this form. Attach proposed section 2254 petition or section 2255 motion to this application.

Mail this form to the court at: Clerk, U.S. Court of Appeals for the Ninth Circuit, P.O. Box 193939, San Francisco, CA 94119-3939 Feedback or questions about this form? Email us at forms@ca9.uscourts.gov —______ feedback or questions about this form? Email us at forms@ca9.uscourts.gov Form 12 J Rev. 12/01/18

CERTIFICATE OF SERVICE

Applications for Leave to File Second or Successive 28 U.S.C. §§ 2254/2255 Petitions/Motions

DEATH PENALTY CASES ONLY

Case Name v.

I certify that a copy of the application for leave to file a second or successive 28 U.S.C. § 2254 petition or § 2255 motion with any attachments was served, either in person or by mail, on the person listed below.

Signature (Notary NOT required)

Date of Service

Name Address

Feedback or questions about this form? Email us at forms@ca9.uscourts. gov Form 12 6 Rev. 12/01/18