1 J S -6

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 CENTRAL DISTRICT OF CALIFORNIA

10 MAURICE R. POLK, Case No. 2:21-05938 JVS (ADS)

11 Petitioner,

ORDER DISMISSING SUCCESSIVE

12 v. FEDERAL HABEAS PETITION AND

DENYING CERTIFICATE OF

13 THE PEOPLE OF THE STATE OF APPEALABLITY

CALIFORNIA,

14 Respondent. 15 16 Before the Court is a Petition for Writ of Habeas Corpus (“Petition”) filed by 17 Petitioner Maurice R. Polk, an inmate at Richard J. Donovan Correctional Facility in 18 San Diego, California. [Dkt. No. 1]. The Court’s review of the Petition, the Court’s own 19 records, and public records reveals that this Petition is a successive petition and 20 Petitioner has not obtained permission from the Ninth Circuit Court of Appeals before 21 filing it. 22 I. RELEVANT BACKGROUND 23 A review of the Court’s Case Management/Electronic Case Filing system reflects 24 that on September 12, 2012, Petitioner filed a Petition for Writ of Habeas Corpus by a 1 Person in State Custody. Commencing Case No. 2:12-cv-07831 JVS PJW (“First Habeas 2 Action”), that petition challenges his 1997 conviction. After the court found that petition 3 untimely and that Petitioner did not qualify for the actual innocence exception to the 4 statute of limitations, judgment was entered dismissing the First Habeas Action with 5 prejudice on December 5, 2012. [First Habeas Action, Dkt. Nos. 11 and 12].

6 On May 1, 2014, Petitioner filed a second Petition for Writ of Habeas Corpus by a 7 Person in State Custody, challenging the same 1997 conviction. Case No. 2:14-cv-06281 8 JVS PJW (“Second Habeas Action”). Finding that petition to be a second or successive 9 habeas corpus petition without authorization from the Ninth Circuit, judgment was 10 entered dismissing the Second Habeas Action on December 9, 2014. [Second Habeas 11 Action, Dkt. Nos. 10 and 11]. 12 On July 21, 2021, Petitioner filed the instant petition, which he titled, “Petition to 13 Recall a 12-6-961 Conviction Pursuant to PC 1096 Presumption of Innocence Requires 14 that the People Prove a Defendant Guilty Beyond a Reasonable Doubt.” [Dkt. No. 1]. 15 The Petition asserts Petitioner was entitled to a verdict of not guilty because he was 16 presumed innocent until proven guilty. [Id.].

17 II. DISCUSSION 18 This Petition is an improper successive habeas petition. 28 U.S.C. § 2244 reads, 19 in pertinent part, as follows: 20 (b) (1) A claim presented in a second or successive habeas corpus application under section 2254 that was presented in a prior application 21 shall be dismissed. . . . 22

1 “The trial took place in 1996 and Petitioner was sentenced in 1997.” First Habeas 23 Action, [Dkt. No. 1, p. 19] (Los Angeles Superior Court Order Denying Petition for Writ of Habeas Corpus in In re Maurice R. Polk, Case No. LA025137). 24 1 (3) (A) Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate 2 court of appeals for an order authorizing the district court to consider the application. 3 4 28 U.S.C. § 2244; see also Rule 9 of the Rules Governing § 2254 Cases (“Before 5 presenting a second or successive motion, the moving party must obtain an order from 6 the appropriate court of appeals authorizing the district court to consider the motion . . . 7 .”). Furthermore, Rule 4 of the Rules Governing § 2254 Cases provides that if it plainly 8 appears from the face of the petition and any exhibits attached to it that the Petitioner is 9 not entitled to relief in the district court, the judge shall summarily dismiss the petition. 10 The instant Petition is Petitioner’s third federal habeas petition challenging his 11 imprisonment as a result of his 1997 judgment. Petitioner has provided no evidence 12 that he obtained Ninth Circuit permission to file a successive petition. A search of the 13 Ninth Circuit’s electronic docketing system on PACER does not reflect that Petitioner 14 sought or obtained permission. “If an application is ‘second or successive,’ the 15 petitioner must obtain leave from the Court of Appeals before filing it with the district 16 court.” Magwood v. Patterson, 561 U.S. 320, 330–31 (2010) (citing 27 U.S.C. § 17 2244(b)(3)(A)). “When the AEDPA is in play, the district court may not, in the absence 18 of proper authorization from the court of appeals, consider a second or successive 19 habeas application.” Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001) (per 20 curiam) (internal quotations and citation omitted). 21 III. CONCLUSION 22 The Petition is a “second or successive” petition without evidence that Petitioner 23 obtained prior approval to file it by the Ninth Circuit Court of Appeals. As such, this 24 1 || Court lacks jurisdiction to consider its merits. Based on the foregoing, IT IS ORDERED 2 || THAT the Petition is summarily dismissed without prejudice for lack of jurisdiction. 3 4 Ve el 5 || Dated: July 28, 2021 / a? Zz _ (THE HONORABLE JAMES V. SELNA 6 United States District Judge 7 || Presented by: 8 /s/ Autumn D. Spaeth _

THE HONORABLE AUTUMN D. SPAETH

9 || United States Magistrate Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24