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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA-WESTERN DIVISION

11 12 13 TYRONE LEE TOLIVER, ) Case No. CV 19-06749-DSF (AS) ) 14 Petitioner, ) ORDER OF DISMISSAL ) 15 ) v. ) 16 ) RALPH DIAZ, CDCR Secretary, ) 17 ) Respondent. ) 18 ) 19 20 BACKGROUND 21 22 On August 1, 2019, Tyrone Lee Toliver (“Petitioner”), a 23 California state prisoner proceeding pro se, filed a Petition for 24 Writ of Habeas Corpus by a Person in State Custody pursuant to 28 25 U.S.C. § 2254 (“Petition”) in the Ninth Circuit Court of Appeals. 26 (Docket Entry No. 2). The Petition was transferred to the United 27 States District Court for the Central District of California on 28 August 2, 2019. (Docket Entry No. 1). Petitioner challenges the 1 25-years-to-life sentence he received following his 2002 2 conviction for second degree robbery in the Los Angeles County 3 Superior Court (Case No. BA216287). The Petition solely alleges 4 that the prosecution used “facts” (an unspecified document from 5 a 1993 adjudicated juvenile case) not found true by a jury or 6 admitted to by Petitioner to increase Petitioner’s sentence “[i]n 7 violation of the U.S. Constitution’s Sixth Amendment right a jury 8 trial pursuant to People v. Gallardo (2017) 4 Cal. 5th 120 and the 9 amendments of Penal Code 1170, and in violation of Cunningham v. 10 California 549 U.S. (2007)[.]” (Petition at 6, Attachment “D”). 11 12 Petitioner has filed the following habeas petitions in this 13 Court challenging the same conviction and sentence: 14 15 (1) On July 8, 2003, Petitioner filed a Petition for Writ of 16 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 17 § 2254. See Tyrone L. Toliver v. Derral G. Adams, Case No. CV 03- 18 04860-AHM (AN); Docket Entry No. 1 (“prior habeas action”). On 19 September 29, 2004, the district court issued an Order and 20 Judgment denying the petition with prejudice, in accordance with 21 the findings and recommendations of the assigned Magistrate Judge. 22 (Id.; Docket Entry Nos. 23, 26-27). On November 19, 2004, the 23 district court denied Petitioner’s request for a certificate of 24 appealability. (Id.; Docket Entry No. 31). On March 8, 2005, the 25 Ninth Circuit Court of Appeals denied Petitioner’s request for a 26 certificate of appealability. (Id.; Docket Entry No. 30). 27 28 2 1 (2) On May 2, 2005, Petitioner filed a Petition for Writ of 2 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 3 § 2254. See Tyrone Lee Toliver v. United States of America, Case 4 No. CV 05-03277-DSF (AN); Docket Entry No. 1. On May 24, 2005, 5 the district court issued an Order and Judgment dismissing the 6 petition without prejudice, based on Petitioner’s failure to 7 obtain authorization from the Ninth Circuit Court of Appeals to 8 file a second of successive petition in this Court. (Id.; Docket 9 Entry Nos. 3-4). 10 11 (3) On June 7, 2019, Petitioner filed a Petition for Writ of 12 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 13 § 2254. See Tyrone Lee Toliver v. Ralph Diaz, Case No. CV 19- 14 04970-DSF (AS); Docket Entry No. 1. On June 13, 2019, the 15 district court issued an Order and Judgment dismissing the 16 petition without prejudice, based on Petitioner’s failure to 17 obtain authorization from the Ninth Circuit Court of Appeals to 18 file a second or successive petition in this Court, and denied 19 Petitioner a certificate of appealability. (Id.; Docket Entry 20 Nos. 3-5).1 21 22 23 24 1 Petitioner still has not sought authorization from the 25 Ninth Circuit Court of Appeals to file a second or successive petition in this Court. In fact, the habeas petition Petitioner 26 filed in the Ninth Circuit Court of Appeals on August 1, 2019 (which was then transferred to this Court) appears to be 27 identical to the habeas petition Petitioner filed in this Court on June 7, 2019. 28 3 1 DISCUSSION 2 3 The Antiterrorism and Effective Death Penalty Act of 1996 4 (“AEDPA”), enacted on April 24, 1996, provides in pertinent part 5 that: 6 (a) No circuit or district judge shall be required to entertain an application for a writ of habeas corpus 7 to inquire into the detention of a person pursuant to a judgment of a court of the United States if it appears 8 that the legality of such detention has been determined by a judge or court of the United States on a prior 9 application for a writ of habeas corpus, except as provided in §2255. 10 (b)(1) A claim presented in a second or successive 11 habeas corpus application under section 2254 that was presented in a prior application shall be dismissed. 12 (2) A claim presented in a second or successive 13 habeas corpus application under section 2254 that was not presented in a prior application shall be dismissed 14 unless-- 15 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to 16 cases on collateral review by the Supreme Court, that was previously unavailable; or 17 (B)(i) the factual predicate for the claim could 18 not have been discovered previously through the exercise of due diligence; and 19 (ii) the facts underlying the claim, if proven and 20 viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence 21 that, but for constitutional error, no reasonable fact finder would have found the applicant guilty of the 22 underlying offense. 23 (3)(A) Before a second or successive application permitted by this section is filed in the district 24 court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court 25 to consider the application. 26 (B) A motion in the court of appeals for an order authorizing the district court to consider a second or 27 successive application shall be determined by a three- 28 4 1 judge panel of the court of appeals. 2 (C) The court of appeals may authorize the filing of a second or successive application only if it 3 determines that the application makes a prima facie showing that the application satisfies the requirements 4 of this subsection. 5 (D) The court of appeals shall grant or deny the authorization to file a second or successive application 6 not later than 30 days after the filing of the motion. 7 (E) The grant or denial of an authorization by a court of appeals to file a second or successive 8 application shall not be appealable and shall not be the subject of a Petition for Rehearing or for a Writ of 9 Certiorari. 10 (4) A district court shall dismiss any claim presented in a second or successive application that the 11 court of appeals has authorized to be filed unless the applicant shows that the claim satisfies the 12 requirements of this section. 28 U.S.C. § 2244. 13 28 U.S.C. § 2244(b)(3) “creates a ‘gatekeeping’ mechanism for 14 the consideration of second or successive applications in district 15 court. The prospective applicant must file in the court of 16 appeals a motion for leave to file a second or successive habeas 17 application in the district court. § 2244(b)(3)(A).” Felker v. 18 Turpin, 518 U.S. 651, 657 (1996). 19 20 The instant Petition, filed on August 2, 2019, and the prior 21 habeas action both challenge Petitioner’s custody pursuant to the 22 same 2002 judgment entered by the Los Angeles County Superior 23 Court. Accordingly, the instant Petition is a second or 24 successive habeas petition for purposes of 28 U.S.C. § 2244. 25 Therefore, Petitioner was required to obtain authorization from 26 the Court of Appeals before filing the present Petition. See 28 27 28 5 1 U.S.C. §2244(b)(3)(A). No such authorization has been obtained 2 in this case. 3 4 Moreover, the claim asserted in the instant Petition does not 5 appear to fall within the exceptions to the bar on second or 6 successive petitions because the asserted claim is not based on 7 newly discovered facts or a “a new rule of constitutional law, 8 made retroactive to cases on collateral review by the Supreme 9 Court, that was previously unavailable.” Tyler v. Cain, 533 U.S. 10 656, 662 (2001). However, this determination must be made by the 11 United States Court of Appeals upon a petitioner’s motion for an 12 order authorizing the district court to consider his second or 13 successive petition. 28 U.S.C. § 2244(b); see also Burton v. 14 Stewart, 549 U.S. 147, 157 (2007)(where the petitioner did not 15 receive authorization from the Court of Appeals before filing 16 second or successive petition, “the District Court was without 17 jurisdiction to entertain [the petition]”); Barapind v. Reno, 225 18 F.3d 1100, 1111 (9th Cir. 2000)(“[T]he prior-appellate-review 19 mechanism set forth in § 2244(b) requires the permission of the 20 court of appeals before ‘a second or successive habeas application 21 under § 2254’ may be commenced.”). 22 23 Because Petitioner has not obtained authorization from the 24 Ninth Circuit Court of Appeals, this Court cannot entertain the 25 present Petition. See Burton v. Stewart, supra. 26 27 28 6 1 ORDER 2 3 Accordingly, IT IS ORDERED that the Petition be dismissed 4] without prejudice. 5 6 LET JUDGMENT BE ENTERED ACCORDINGLY. 7 8 || DATED: January 27, 2021 9 +? 10 A. . Joa Aer

DALE S. FISCHER

1 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28