“petitioner’s burden is higher” under statute to 21 bring successive habeas action
How later courts described this case
- “petitioner’s burden is higher” under statute to 21 bring successive habeas action
Written by the judges who cited it.
The opinion
1
2
3
4
5
6
7
8
9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE CENTRAL DISTRICT OF CALIFORNIA
11
12
Case No. SA CV 20-1550 ODW (MRW)
13 MARVIN VERNIS SMITH,
ORDER DISMISSING ACTION
14 Petitioner,
WITHOUT PREJUDICE
15 v.
16 MARCUS POLLARD, Warden,
17 Respondent.
18
19
The Court summarily dismisses Petitioner’s habeas action without
20
prejudice as successive under 28 U.S.C. § 2244.
21
* * *
22
1. Petitioner is a state prisoner serving a life term in prison for
23
the murder of his wife.
24
2. Petitioner (through a retained attorney) previously sought
25
federal habeas relief in this district regarding his conviction. The Court
26
originally granted that habeas petition. Smith v. Lopez, No. SA CV 11-
27
1076 ODW (MRW) (C.D. Cal.). The Ninth Circuit affirmed the decision.
28
1 Smith v. Lopez, 731 F.3d 859 (9th Cir. 2013). However, the U.S. Supreme
2 Court reversed the Ninth Circuit in a per curiam ruling. Lopez v. Smith,
3 574 U.S. 1 (2014). Petitioner remained in state custody during the
4 pendency of the federal proceedings.
5 3. In 2020, Petitioner (now a pro se litigant) filed the current
6 action. The petition presents a single claim under Brady v. Maryland
7 regarding a jailhouse informant who ultimately did not testify against
8 Petitioner at trial. (Docket # 1 at 5; # 11-1 at 9-10.)
9 4. Magistrate Judge Wilner screened the 2020 habeas action.
10 Judge Wilner noted that the action was not accompanied by a certificate
11 from the Ninth Circuit Court of Appeals authorizing a second habeas
12 action under 28 U.S.C. § 2244. (Docket # 3.) Even so, the California
13 Attorney General was directed to respond the new action. (Docket # 8.)
14 5. The Attorney General moved to dismiss the action. The
15 Attorney General argued that the new case was successive, untimely, and
16 procedurally barred based on adverse rulings in the state court system.
17 (Docket # 11.)
18 6. Petitioner filed an opposition to the dismissal motion. (Docket
19 # 17.) Petitioner’s submission focused on the merits of his Brady
20 allegations. However, neither this brief nor a supplemental submission
21 that Petitioner filed earlier in the action (Docket # 7) addressed the
22 successive nature of the current petition or Petitioner’s failure to seek
23 appellate court authorization for this second federal habeas action.
24 * * *
25 7. If it “appears from the application that the applicant or person
26 detained is not entitled” to habeas relief, a court may summarily dismiss a
27 habeas action. 28 U.S.C. § 2243; see also Rule 4 of Rules Governing
28
1 Section 2254 Cases in United States District Courts (petition may be
2 summarily dismissed if petitioner plainly not entitled to relief); Local Civil
3 Rule 72-3.2 (magistrate judge may submit proposed order for summary
4 dismissal to district judge “if it plainly appears from the face of the petition
5 [ ] that the petitioner is not entitled to relief”).
6 8. Under federal law, a state prisoner is generally required to
7 present all constitutional challenges to a state conviction in a single federal
8 action. “Before a second or successive [habeas petition] is filed in the
9 district court, the applicant shall move in the appropriate court of appeals
10 for an order authorizing the district court to consider the application.”
11 28 U.S.C. § 2244(b)(3)(A) (emphasis added). A prisoner must obtain
12 authorization from the Court of Appeals to pursue such a successive habeas
13 petition before the new petition may be filed in district court. Id.; Burton v.
14 Stewart, 549 U.S. 147, 156 (2007) (district court without jurisdiction to
15 consider successive habeas action when prisoner “neither sought nor
16 received authorization from the Court of Appeals before filing”).
17 9. “If the petition is second or successive, then the district court
18 lacks jurisdiction and must dismiss the petition unless and until the court
19 of appeals grants an application to file it.” Brown v. Muniz, 889 F.3d 661,
20 667, 676 (9th Cir. 2018) (“petitioner’s burden is higher” under statute to
21 bring successive habeas action); Prince v. Lizzaraga, 733 F. App’x 382, 384
22 (9th Cir. 2018) (prisoner “must first apply to this [appellate] court for
23 permission to have his petition heard in the district court”).
24 * * *
25 10. Petitioner’s current habeas action is subject to summary
26 dismissal. The petition challenges the same murder conviction for which
27 he already received considerable habeas review in a heavily litigated case
28
1 | in this federal court. Petitioner offers no proof that he obtained permission
2 | from the Ninth Circuit to bring a new habeas action in this Court. He also
3 | provides no coherent reason why he is entitled to present claims at this
4 | stage that his private attorneys could have, but did not, bring years ago.
5 | As a result, the current petition must be dismissed for lack of jurisdiction.
6 | 28 U.S.C. § 2244(b); Burton, 549 U.S. at 156; Brown, 889 F.3d at 667;
7 | Prince, 733 F. App’x at 384.
8 11. Because the Court does not have jurisdiction to consider the
9 | merits of Petitioner’s habeas claims, it declines to address the Attorney
10 | General’s alternative contentions that the current action is untimely or
11 | procedurally barred under AEDPA.
12 okok
13 Therefore, the present action is hereby DISMISSED without
14 | prejudice as successive.
15 IT IS SO ORDERED.
16
17
18 | Dated: April 29, 2021
19 HON. OTIS D. WRIGHT II
UNITED STATES DISTRICT JUDGE
20
21 Presented by:
22
TL
24
HON. MICHAEL R. WILNER
25 | UNITED STATES MAGISTRATE JUDGE
26
27
28