“petitioner’s burden is higher” under statute to 3 bring successive habeas action
How later courts described this case
- “petitioner’s burden is higher” under statute to 3 bring successive habeas action
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. ED CV 23-1199 DOC (MRW)
13 LONNIE LEE POSLOF, SR.,
ORDER DISMISSING
14 Petitioner,
SUCCESSIVE HABEAS ACTION
15 v.
28 U.S.C. § 2244
16 BRIAN D. PHILLIPS, Warden,
17 Respondent.
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The Court dismisses Petitioner’s state habeas action without
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prejudice as successive under 28 U.S.C. § 2244.
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1. Petitioner is a state prisoner serving a life sentence. He filed
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the present habeas corpus action to challenge his 2003 conviction for
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violating state sex offender registration requirements.
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2. This is Petitioner’s fourth attempt to seek habeas relief in this
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federal court regarding his conviction. The Court initially denied relief
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after an evidentiary hearing in Poslof v. Yates, No. ED CV 06-1418 AG
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1 (SH) (C.D. Cal.). The Ninth Circuit Court of Appeals affirmed that
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3 3. Additionally, the Court dismissed two other habeas actions on
4 procedural grounds – including for pursuing a successive petition without
5 authorization – after that. Poslof v. Sherman, No. ED CV 15-2526 AG
6 (MRW) (C.D. Cal.); Poslof v. Sherman, No. ED CV 19-1422 DOC (MRW)
7 (C.D. Cal.). Petitioner did not seek appellate review of those dismissals.
8 4. The current petition appears to allege issues regarding
9 Petitioner’s physical and mental competence at the time of his original
10 trial. His petition also refers to recent state law changes and state court
11 judicial decisions that Petitioner contends relate to his case. Notably, the
12 petition was not accompanied by a certificate from the Ninth Circuit
13 authorizing a second or successive petition under 28 U.S.C. § 2244.
14 5. Magistrate Judge Wilner screened the petition pursuant to
15 local practice and Habeas Rule 4. Judge Wilner preliminarily concluded
16 that the habeas petition was likely successive. (Docket # 9, 11.)
17 Judge Wilner ordered Petitioner to submit a supplemental statement
18 explaining why the action was not successive.
19 6. Petitioner submitted several items in response to the screening
20 order. (Docket # 15, 19, 20, 21.) The bulk of these materials were prison
21 medical records regarding Petitioner’s ongoing health and disability
22 problems. Petitioner glancingly addressed the successive nature of the
23 current action by referring to issues that occurred at his original criminal
24 trial. (Docket # 15 at 7-9.) Nowhere in the materials did Petitioner
25 dispute that this action is successive under federal law.
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1 7. If it “appears from the application that the applicant or person
2 detained is not entitled” to habeas relief, a court may dismiss a habeas
3 action without seeking a response from the government.1 28 U.S.C. § 2243;
4 see also Rule 4 of Rules Governing Section 2254 Cases in United States
5 District Courts (petition may be summarily dismissed if petitioner plainly
6 not entitled to relief); Local Civil Rule 72-3.2 (magistrate judge may submit
7 proposed order for summary dismissal to district judge “if it plainly
8 appears from the face of the petition [ ] that the petitioner is not entitled to
9 relief”).
10 8. Under federal law, a state prisoner is generally required to
11 present all constitutional challenges to a state conviction in a single federal
12 action. “Before a second or successive [habeas petition] is filed in the
13 district court, the applicant shall move in the appropriate court of appeals
14 for an order authorizing the district court to consider the application.”
15 28 U.S.C. § 2244(b)(3)(A) (emphasis added). A prisoner must obtain
16 authorization from the Court of Appeals to pursue such a successive habeas
17 petition before the new petition may be filed in district court. Id.; Burton v.
18 Stewart, 549 U.S. 147, 156 (2007) (district court without jurisdiction to
19 consider successive habeas action when prisoner “neither sought nor
20 received authorization from the Court of Appeals before filing”).
21 9. “If the petition is second or successive, then the district court
22 lacks jurisdiction and must dismiss the petition unless and until the court
23 1 Shortly after his first responsive submission (and before the entry of
a dispositive ruling in this district court), Petitioner purported to file a notice of
24 appeal. (Docket # 16, 17.) A notice of appeal or other similar document
ordinarily serves to divest a district court of jurisdiction.
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However, ample authority establishes that a frivolous or premature
26 appeal does not divest a court of continued jurisdiction over the action. Marks v.
Clarke, 102 F.3d 1012, 1017 n.8 (9th Cir. 1996); Haggerty v. Diaz, No. CV 12-
27 2219 DMG (JCG), 2013 WL 4718171 at *2 (C.D. Cal.). Because Petitioner’s notice
of appeal is clearly premature, the Court retains authority to consider whether it
28 is appropriate to dismiss the action on the grounds stated in this decision.
1 of appeals grants an application to file it.” Brown v. Muniz, 889 F.3d 661,
2 667, 676 (9th Cir. 2018) (“petitioner’s burden is higher” under statute to
3 bring successive habeas action); Prince v. Lizzaraga, 733 F. App’x 382, 384
4 (9th Cir. 2018) (prisoner “must first apply to this [appellate] court for
5 permission to have his petition heard in the district court”).
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7 10. Petitioner’s current habeas action is subject to dismissal. The
8 petition challenges the same conviction for which he previously obtained
9 habeas review. Petitioner did not obtain permission from the Ninth Circuit
10 to bring a new habeas action in this Court. Nor has Petitioner explained to
11 the Court why this action is not successive. The materials elaborating on
12 his historic or current mental health difficulties are insufficient to
13 establish federal jurisdiction.2
14 11. As a result, the Court does not have jurisdiction under Section
15 2244(b)(3)(A) to review Petitioner’s habeas claims. The current petition
16 must be dismissed for lack of jurisdiction. 28 U.S.C. § 2244(b); Burton,
17 549 U.S. at 156; Brown, 889 F.3d at 667; Prince, 733 F. App’x at 384.
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25 2 To the extent that Petitioner points to recent state statutory changes
or state court decisions regarding his claim, those state law actions cannot refute
26 the successiveness of the action in this federal court under AEDPA. 28 U.S.C. §
2244(b)(2)(A) (action successive unless “the claim relies on a new rule of [federal]
27 constitutional law, made retroactive to cases on collateral review by the [United
States] Supreme Court, that was previously unavailable”). Petitioner’s
28 submission fails to meet this specific standard.
1 Because the Court is without jurisdiction to consider Petitioner’s
2 | claim, the action is DISMISSED without prejudice as successive.
3 IT IS SO ORDERED.
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Dated: November 30, 2023 Abuait g. Cot)
HON. DAVID O. CARTER
7 UNITED STATES DISTRICT JUDGE
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9 | Presented by:
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13 | HON. MICHAEL R. WILNER
14 UNITED STATES MAGISTRATE JUDGE
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