“petitioner’s burden is higher” under statute to bring successive 17 habeas action
How later courts described this case
- “petitioner’s burden is higher” under statute to bring successive 17 habeas action
- district court 11 without jurisdiction to consider successive habeas action when prisoner “neither 12 sought nor received authorization from the Court of Appeals before filing”
Written by the judges who cited it.
The opinion
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9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE CENTRAL DISTRICT OF CALIFORNIA
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Case No. CV 21-3016 CJC (MRW)
13 PAUL DIXON LEWIS,
ORDER DISMISSING SUCCESSIVE
14 Petitioner,
HABEAS ACTION
15 v.
16 TERESA CISNEROS, Warden,
17 Respondent.
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19 The Court summarily dismisses this action – Petitioner’s sixth in this
20 district court – pursuant to the successive habeas petition rule under 28 U.S.C.
21 §§ 2243 and 2244.
22 * * *
23 1. Petitioner is a state prisoner. As on previous occasions, he again
24 seeks to challenge the lengthy sentence he received for his 1990 convictions for
25 rape and kidnapping.
26 2. The Court previously dismissed Petitioner’s other habeas actions
27 for the following reasons:
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1 a. dismissed as untimely (Lewis v. Woodward, No. CV 05-
2 3792 CJC (MAN) (C.D. Cal.) (9th Circuit denied certificate
3 of appealability));
4 b. dismissed for failure to prosecute (Lewis v. Byrne, No. CV
5 17-3957 CJC (MRW) (C.D. Cal.) (dismissal affirmed on
6 appeal));
7 c. dismissed as successive, untimely, and procedurally barred
8 (Lewis v. Byrne, No. CV 17-6412 CJC (MRW) (C.D. Cal.)
9 (9th Circuit denied certificate of appealability));
10 d. dismissed as successive (Lewis v. CRC Warden, No. CV 18-
11 6937 CJC (MRW) (C.D. Cal.)); and
12 e. dismissed as successive (Lewis v. Byrne, No. CV 18-8104
13 CJC (MRW) (C.D. Cal.)).
14 3. In those previous actions, the assigned magistrate judge explained
15 the prohibition against filing successive habeas cases in federal court without
16 authorization from a federal appellate court under 28 U.S.C. § 2244(b).
17 4. As in his other federal actions, Petitioner again contends that he
18 was improperly sentenced in the 1990s for his criminal convictions. The
19 current petition was not accompanied by a certificate from the Ninth Circuit
20 authorizing a successive habeas action.
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22 5. If it “appears from the application that the applicant or person
23 detained is not entitled” to habeas relief, a court may dismiss a habeas action
24 without ordering service on the responding party. 28 U.S.C. § 2243; see
25 also Rule 4 of Rules Governing Section 2254 Cases in United States District
26 Courts (petition may be summarily dismissed if petitioner plainly not entitled to
27 relief); Local Civil Rule 72-3.2 (magistrate judge may submit proposed order
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1 for summary dismissal to district judge “if it plainly appears from the face of
2 the petition [ ] that the petitioner is not entitled to relief”).
3 6. Under federal law, a state prisoner is generally required to present
4 all constitutional challenges to a state conviction in a single federal action.
5 “Before a second or successive [habeas petition] is filed in the district court, the
6 applicant shall move in the appropriate court of appeals for an order authorizing
7 the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A).
8 7. A prisoner must obtain authorization from the Court of Appeals to
9 pursue such a successive habeas petition before the new petition may be filed in
10 district court. Id.; Burton v. Stewart, 549 U.S. 147, 156 (2007) (district court
11 without jurisdiction to consider successive habeas action when prisoner “neither
12 sought nor received authorization from the Court of Appeals before filing”).
13 8. “If the petition is second or successive, then the district court lacks
14 jurisdiction and must dismiss the petition unless and until the court of appeals
15 grants an application to file it.” Brown v. Muniz, 889 F.3d 661, 667, 676 (9th
16 Cir. 2018) (“petitioner’s burden is higher” under statute to bring successive
17 habeas action); Prince v. Lizzaraga, 733 F. App’x 382, 384 (9th Cir. 2018)
18 (prisoner “must first apply to this court for permission to have his petition heard
19 in the district court”).
20 9. A dismissal of a habeas action “for failure to comply with the
21 statute of limitations renders subsequent petitions second or successive for
22 purposes of the AEDPA,” thereby requiring appellate court permission for the
23 new filing. McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009); Remsen v.
24 Attorney General, 471 F. App’x 571 (9th Cir. 2012) (same).
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26 10. Petitioner’s current habeas action is subject to summary dismissal.
27 The current petition challenges the same rape sentence that was the subject of
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| | all of his earlier habeas actions. The first action was denied as untimely. (CV
2 | 05-3792.) Petitioner’s following four habeas actions (CV 17-3957, CV 17-
3 | 6412, CV 18-6937, CV 18-8104) were dismissed for various procedural
4 | reasons, including the successive nature of those actions. Notably, Petitioner
5 | failed to obtain permission from the federal appellate court to file any of those
6 | subsequent actions in this district court.
7 11. Those defects make the current action successive, too. McNabb,
8 | 576 F.3d at 1030. Petitioner presents no proof that he asked for or received
9 | permission from the Ninth Circuit to pursue another successive action. On this
10 | basis, the current petition is subject to summary dismissal. 28 U.S.C.
11 | § 2244(b); Brown, 889 F.3d at 667; Prince, 733 F. App’x at 384.
12 ORK
13 Because the Court does not have jurisdiction to consider Petitioner’s
14 | claim, the action is DISMISSED without prejudice as successive.
15 IT IS SO ORDERED.
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18 | Dated: April 9, 2021
19 HON. CORMAC J. CARNEY
30 UNITED STATES DISTRICT JUDGE
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9 Presented by:
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95 | HON. MICHAEL R. WILNER
UNITED STATES MAGISTRATE JUDGE
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