1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 MARTIN J. BIBBS, Case No. 2:21-cv-05398-PA (AFM)

12 Petitioner,

ORDER SUMMARILY DISMISSING

13 HABEAS PETITION FOR LACK OF v.

SUBJECT MATTER JURISDICTION

14

W.J. SULLIVAN,

15 Respondent. 16 17 18 In 1991, Petitioner was convicted of two counts of willful, deliberate, and 19 premeditated attempted murder, two counts of assault with a deadly weapon, and one 20 count of assault with a firearm. He was sentenced to state prison for two consecutive 21 terms of seven years to life. (ECF 1.) 22 On July 1, 2021, Petitioner filed this petition for a writ of habeas corpus 23 challenging his 1991 conviction. See 28 U.S.C. § 2254. The petition raises a single 24 claim for relief – namely, Petitioner alleges that he is actually innocent. (ECF 1 at 5, 25 19-20.) In support of his claim, Petitioner includes the February 15, 2013 declaration 26 from one of the victims (Ayo Nwanodi Hullett) recanting his trial testimony. (ECF 1 27 at 16-18.) 28 Petitioner previously has filed a habeas corpus petition in this Court 1 challenging his 1991 conviction. Case No. 2:15-cv-02365-PA(AFM). That petition 2 raised five claims for relief, one of which is identical to Petitioner’s present claim of 3 actual innocence.1 On February 23, 2016, judgment was entered dismissing that 4 petition with prejudice as time-barred. See 28 U.S.C. § 2244(d)(1). 5 Because the current petition challenges the same judgment of conviction as did 6 the petition in Case Number 2:15-cv-02365-PA(AFM), it is successive. See McNabb 7 v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (dismissal of a habeas petition as time 8 barred constitutes a disposition on the merits and renders a subsequent petition 9 second or successive for purposes of 28 U.S.C. § 2244(b)). “Before a second or 10 successive application permitted by this section is filed in the district court, the 11 applicant shall move in the appropriate court of appeals for an order authorizing the 12 district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Absent 13 authorization from the Court of Appeals, this Court lacks jurisdiction over a 14 successive petition. See Magwood v. Patterson, 561 U.S. 320, 330-331 (2010); 15 Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001). 16 Petitioner has not obtained authorization from the Ninth Circuit to file this 17 second or successive petition. Consequently, this Court is without jurisdiction to 18 entertain it.2 See Burton v. Stewart, 549 U.S. 147, 153 (2007). Furthermore, to the 19 extent that Petitioner might contend that his petition meets an exception to the bar on 20 successive petitions, his argument must first be presented to the Court of Appeals. 21 /// 22 ///

23 1 Indeed, Petitioner previously submitted the same declaration supporting his innocence claim that 24 he submits as part of the present petition. (ECF 1 in Case No. 2:15-cv-02365-PA(AFM) at 21-23.)

25 2 A request for authorization to file a successive petition that is “mistakenly submitted” to a district court must be referred to the Ninth Circuit. See Ninth Circuit Rule No. 22-3(a). Rule 22-3(a) also 26 provides that a district court may refer such a petition to the Ninth Circuit when to do so would serve the interests of justice. Neither circumstance is present in this case. Nevertheless, the Clerk 27 is directed to mail petitioner a copy of Ninth Circuit Form 12 so that Petitioner may file an 28 application for leave to file a second or successive petition in the Court of Appeals. 1 IT THEREFORE IS ORDERED that this action be summarily dismissed 2 || without prejudice for lack of jurisdiction. 3 LET JUDGMENT BE ENTERED ACCORDINGLY. 4 5 || DATED: July 7, 2021 6

UNITED STATES DISTRICT JUDGE

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