“petitioner’s burden is higher” under statute to 17 bring successive habeas action
How later courts described this case
- “petitioner’s burden is higher” under statute to 17 bring successive habeas action
Written by the judges who cited it.
The opinion
Case 2:21-cv-08676-AB-MRW Document 7 Filed 01/11/22 Page 1 of 4 Page ID #:126
1
2
JS-6
3
4
5
6
7
8
9 IN THE UNITED STATES DISTRICT COURT
10 FOR THE CENTRAL DISTRICT OF CALIFORNIA
11
12
Case No. CV 21-8676 AB (MRW)
13 BRYANT K. UNDERWOOD,
ORDER DISMISSING ACTION
14 Petitioner,
WITHOUT PREJUDICE
15 v.
16 R. BROOMFIELD, Warden,
17 Respondent.
18
19
The Court summarily dismisses this action pursuant to the
20
successive habeas petition rule under 28 U.S.C. §§ 2243 and 2244.
21
* * *
22
1. Petitioner is currently serving a life term in state prison based
23
on his 2015 murder conviction for stabbing his cousin to death.
24
2. In this federal habeas action, Petitioner seeks to advance
25
Miranda and Brady challenges related to his original trial. (Docket # 1.)
26
In a separate statement, Petitioner also alluded to “newly found evidence”
27
regarding the crime and police investigation. (Docket # 6.)
28
Case 2:21-cv-08676-AB-MRW Document 7 Filed 01/11/22 Page 2 of 4 Page ID #:127
1 3. Petitioner previously sought habeas relief in this Court
2 regarding his murder conviction. The Court denied Petitioner’s earlier
3 habeas petition on the merits of the claims asserted. Underwood v.
4 Sullivan, No. CV 17-7239 AB (MRW) (C.D. Cal.). Petitioner did not seek
5 appellate review of the denial of habeas relief in that action.
6 4. Magistrate Judge Wilner screened the petition in the current
7 action. (Docket # 4.) Judge Wilner noted that the action appeared to be
8 successive, and was not accompanied by a certificate from the Ninth
9 Circuit authorizing a second habeas action under 28 U.S.C. § 2244.
10 Judge Wilner further noted that the action appeared to be untimely under
11 AEDPA, and contained claims that had not been presented to or exhausted
12 in the state supreme court. (Id. at 2-3.)
13 5. Petitioner submitted a supplemental statement regarding the
14 petition. (Docket # 6.) That statement did not address the successive
15 nature of the new action at all, nor did it explain why Petitioner failed to
16 obtain permission from the appellate court as required under AEDPA.
17 Rather, Petitioner asserted that he has “no faith in repetitive appeals in
18 the state court” as the basis for his request for federal court consideration.
19 (Id. at 1.)
20 * * *
21 6. If it “appears from the application that the applicant or person
22 detained is not entitled” to habeas relief, a court may summarily dismiss a
23 habeas action. 28 U.S.C. § 2243; see also Local Civil Rule 72-3.2
24 (magistrate judge may submit proposed order for summary dismissal to
25 district judge “if it plainly appears from the face of the petition [ ] that the
26 petitioner is not entitled to relief”).
27
28
2
Case 2:21-cv-08676-AB-MRW Document 7 Filed 01/11/22 Page 3 of 4 Page ID #:128
1 7. Under federal law, a state prisoner is generally required to
2 present all constitutional challenges to a state conviction in a single federal
3 action. “Before a second or successive [habeas petition] is filed in the
4 district court, the applicant shall move in the appropriate court of appeals
5 for an order authorizing the district court to consider the application.”
6 28 U.S.C. § 2244(b)(3)(A).
7 8. A prisoner must obtain authorization from the Court of
8 Appeals to pursue such a successive habeas petition before the new petition
9 may be filed in district court. Id.; Burton v. Stewart, 549 U.S. 147, 156
10 (2007) (district court without jurisdiction to consider successive habeas
11 action when prisoner “neither sought nor received authorization from the
12 Court of Appeals before filing”).
13 9. “If the petition is second or successive, then the district court
14 lacks jurisdiction and must dismiss the petition unless and until the court
15 of appeals grants an application to file it.” Brown v. Muniz, 889 F.3d 661,
16 667, 676 (9th Cir. 2018) (“petitioner’s burden is higher” under statute to
17 bring successive habeas action); Prince v. Lizzaraga, 733 F. App’x 382, 384
18 (9th Cir. 2018) (prisoner “must first apply to this [appellate] court for
19 permission to have his petition heard in the district court”).
20 * * *
21 10. Petitioner’s current habeas action is subject to summary
22 dismissal. The petition challenges the same murder conviction that was
23 the subject of his earlier federal habeas action. That action (CV 17-7239)
24 was denied on the merits several years ago. This makes make the current
25 action successive. McNabb, 576 F.3d at 1030. Petitioner presents no proof
26 that he asked for or received permission from the Ninth Circuit to pursue
27
28
3
ase 2:21-cv-08676-AB-MRW Document Filed 01/11/22 Page4of4 Page ID#:129
1 | another successive action. The successive action must be dismissed.
2 | 28 U.S.C. § 2244(b); Brown, 889 F.3d at 667; Prince, 733 F. App’x at 384.
3 11. Because the Court does not have jurisdiction to consider the
4 | merits of Petitioner’s habeas claims, it declines to take up the alternate
5 || potential procedural problems with the new petition (that is, untimeliness
6 | and lack of proper exhaustion).
7 kokk
8 The Court does not have jurisdiction to consider Petitioner’s claims.
9 | The action is DISMISSED without prejudice as successive.
10 IT IS SO ORDERED.
:
ch
13 Dated: January 11, 2022
HON. ANDRE BIROTTE, JR.
14 UNITED STATES DISTRICT JUDGE
15
16 || Presented by:
17
Vil
19 | HON. MICHAEL. WILNER
99 | UNITED STATES MAGISTRATE JUDGE
21
22
23
24
25
26
27
28