1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA 11 12 JEROME NORMAN SCOTT, ) No. EDCV 19-1733 JAK (FFM) ) 13 Petitioner, ) ORDER SUMMARILY DISMISSING ) PETITION FOR WRIT OF HABEAS 14 v. ) CORPUS FOR LACK OF SUBJECT ) MATTER JURISDICTION; 15 ROBERT NEUSCHMID, ) WARDEN, ) REFERRING THE PETITION TO THE 16 ) U.S. COURT OF APPEALS PURSUANT Respondent. ) TO NINTH CIRCUIT RULE 22-3(A); 17 DENYING A CERTIFICATE OF 18 APPEALABILITY 19 DISMISSAL OF HABEAS PETITION WITHOUT PREJUDICE 20 On or about September 4, 2019, petitioner Jerome Norman Scott 21 (“Petitioner”) constructively filed a Petition for Writ of Habeas Corpus by a 22 Person in State Custody (“Petition”).1 Petitioner challenges a conviction and 23 24 1 A pro se prisoner’s relevant filings may be construed as filed on the date they 25 were submitted to prison authorities for mailing, under the prison “mailbox rule” of 26 Houston v. Lack,

,

(1988). In this case, Petitioner has not attached a proof of service to the Petition; however, the Petition is dated 27 September 4, 2019. Therefore, the Court will assume that the Petition was 28 (continued...) 1 sentence imposed by the California Superior Court for the County of San 2 Bernardino in 2006. 3 The Court takes judicial notice of its files with respect to a prior habeas 4 petition Petitioner filed in this Court on August 13, 2009 (Case No. CV 09-1554 5 GAF (CT)) (the “Prior Petition”). The Court notes that the Prior Petition was 6 directed to the same conviction and/or sentence sustained in San Bernardino 7 County Superior Court in 2006. On March 6, 2010, Judgment was entered in 8 Case No. CV 09-1554 GAF (CT) denying the Prior Petition on the merits and 9 dismissing the action with prejudice. 10 The Petition now pending is governed by the provisions of the 11 Antiterrorism and Effective Death Penalty Act of 1996 (

Stat. 12 1214) (“the Act”) which became effective April 24, 1996. Section 106 of the Act 13 amended

(b) to read, in pertinent part, as follows: 14 (1) A claim presented in a second or successive habeas corpus 15 application under section 2254 that was presented in a prior 16 application shall be dismissed. 17 (2) A claim presented in a second or successive habeas corpus 18 application under section 2254 that was not presented in a prior 19 application shall be dismissed unless -- 20 (A) the applicant shows that the claim relies on a new 21 rule of constitutional law, made retroactive to cases on 22 collateral review by the Supreme Court, that was 23 previously unavailable; or 24 (B)(I) the factual predicate for the claim could not have 25 been discovered previously through the exercise of due 26 27 1(...continued) 28 constructively filed no later than September 4, 2019. 1 diligence; and 2 (ii) the facts underlying the claim, if proven and 3 viewed in light of the evidence as a whole, would be 4 sufficient to establish by clear and convincing evidence 5 that, but for constitutional error, no reasonable factfinder 6 would have found the applicant guilty of the underlying 7 offense. 8 (3)(A) Before a second or successive application permitted by this 9 section is filed in the district court, the applicant shall move in the 10 appropriate court of appeals for an order authorizing the district court 11 to consider the application. 12 Therefore, because the Petition now pending challenges the same 13 conviction as Petitioner’s Prior Petition, it constitutes a second and/or successive 14 petition within the meaning of

(b). To the extent Petitioner seeks 15 to pursue the same claims he previously asserted, the Petition is barred by the 16 provisions of

(b)(1). To the extent Petitioner seeks to pursue 17 claims not previously asserted, it was incumbent on him under § 2244(b)(3)(A) to 18 secure an order from the Ninth Circuit authorizing the District Court to consider 19 the Petition, prior to his filing of it in this Court. Petitioner’s failure to secure 20 such an order from the Ninth Circuit deprives the Court of subject matter 21 jurisdiction. 22 23 “REFERRAL” OF HABEAS CORPUS PETITION TO NINTH CIRCUIT 24 Ninth Circuit Rule 22-3(a) states, in pertinent part, that “[i]f a second or 25 successive petition or motion, or an application for authorization to file such a 26 petition or motion, is mistakenly submitted to the district court, the district court 27 shall refer it to the court of appeals.” 28 / / / 1 Therefore, to the extent the Petition was “mistakenly submitted” to this 2 Court, the Petition must be referred to the court of appeals. However, it is unclear 3 whether the district court may both “refer” the Petition to the Ninth Circuit and, at 4 the same time, dismiss the Petition. After reviewing numerous district court cases 5 in this circuit, this Court concludes that simultaneous referral and dismissal is 6 appropriate. See Cielto v. Hedgpeth,

(C.D. Cal. Apr. 23, 7 2014). 8 9 DENIAL OF CERTIFICATE OF APPEALABILITY 10 Rule 11(a) of the Rules Governing § 2254 Actions provides: 11 (a) Certificate of Appealability. The district court must 12 issue or deny a certificate of appealability when it enters 13 a final order adverse to the applicant. Before entering 14 the final order, the court may direct the parties to submit 15 arguments on whether a certificate should issue. If the 16 court issues a certificate, the court must state the specific 17 issue or issues that satisfy the showing required by 28

(c)(2). If the court denies a certificate, the 19 parties may not appeal the denial but may seek a 20 certificate from the court of appeals under Federal Rule 21 of Appellate Procedure 22. A motion to reconsider a 22 denial does not extend the time to appeal. 23 Here, given the Court’s ruling on settled legal issues, the Court does not 24 require any arguments from the parties on whether a certificate of appealability 25 (“COA”) should issue. 26 Under

(c)(2), a COA may issue “only if the applicant has 27 made a substantial showing of the denial of a constitutional right.” Here, the 28 Court dismissed the petition on the ground that it was a second or successive 1 petition. Thus, the Court’s determination of whether a COA should issue is 2 governed by the Supreme Court’s decision in Slack v. McDaniel,

, 3

,

(2000), where the Supreme Court held that, 4 “[w]hen the district court denies a habeas petition on procedural grounds without 5 reaching the prisoner’s underlying constitutional claim, a COA should issue when 6 the prisoner shows, at least, that jurists of reason would find it debatable whether 7 the petition states a valid claim of the denial of a constitutional right and that 8 jurists of reason would find it debatable whether the district court was correct in 9 its procedural ruling.”

. As the Supreme Court further explained: 10 Section 2253 mandates that both showings be made before the court 11 of appeals may entertain the appeal. Each component of the § 12 2253(c) showing is part of a threshold inquiry, and a court may find 13 that it can dispose of the application in a fair and prompt manner if it 14 proceeds first to resolve the issue whose answer is more apparent 15 from the record and arguments. 16

. 17 Here, the Court finds that its ruling is not one in which “jurists of reason 18 would find it debatable whether the district court was correct in its procedural 19 ruling” that the Court has no jurisdiction over the Petition. 20 21 ORDER 22 Pursuant to Ninth Circuit Rule 22-3(a), the Court refers the habeas Petition 23 to the U.S. Court of Appeals for the Ninth Circuit for consideration as an 24 application for leave to file a second-or-successive habeas petition. The Clerk of 25 Court shall send a copy of the habeas Petition and a copy of this Order to the 26 Clerk of the U.S. Court of Appeals for the Ninth Circuit. 27 / / / 28 / / / 1 The Clerk of Court shall provide petitioner with a form recommended by 2 || the Ninth Circuit for filing an Application for Leave to File Second or Successive 3 || Petition Under

or Motion Under

. 4 This action is dismissed without prejudice for lack of subject-matter 5 || jurisdiction pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the 6 || United States District Courts. 7 LET JUDGMENT BE ENTERED ACCORDINGLY. 8 A certificate of appealability is denied. 9 10 | DATED: October 18, 2019 ( tn Nh JOHN A. KRONSTADT 12 United States District Judge 13 14 ]| Presented by: /S/ FREDERICK F. MUMM 16 FREDERICK F. MUMM United States Magistrate Judge 18 19 20 21 22 23 24 25 26 27 28