1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LUIS F. BALLESTEROS, Case No. 5:20-cv-00995-JVS (AFM) 12 Petitioner, ORDER SUMMARILY 13 DISMISSING PETITION FOR v. WRIT OF HABEAS CORPUS FOR 14 LACK OF SUBJECT MATTER J. GASTELO, Warden, 15 JURISDICTION Respondent. 16 17 18 Petitioner, a state prisoner, is currently serving a sentence imposed by the 19 Riverside County Superior Court as a result of his 1997 conviction of burglary and 20 multiple counts of rape. On May 4, 2020, he filed this petition for a writ of habeas 21 corpus challenging that conviction and sentence. (ECF No. 1.) 22 This is not Petitioner’s first petition. He previously filed a habeas corpus 23 petition in this Court challenging his 1997 conviction and sentence. Case No. 5:05- 24 cv-01130-JVS(MLG).1 On April 14, 2006, judgment was entered dismissing the 25 petition with prejudice as untimely. Petitioner’s requests for a certificate of 26 appealability were denied both by this Court and by the Ninth Circuit. 27 1 The Court takes judicial notice of Petitioner’s other actions filed in this Court. See Fed. R. Evid. 28 201. 1 The prior dismissal of Petitioner’s habeas corpus petition for failure to comply 2 || with the statute of limitation constitutes a dismissal on the merits and renders 3 || subsequent petitions second or successive under the AEDPA. See McNabb v. Yates, 4 |

(9th Cir. 2009). “Before a second or successive application 5 || permitted by this section is filed in the district court, the applicant shall move in the 6 || appropriate court of appeals for an order authorizing the district court to consider the 7 || application.”

(b)(3)(A). Absent authorization from the Court of 8 || Appeals, this Court lacks jurisdiction over a successive petition. See Magwood v. 9 || Patterson,

(2010); Cooper v. Calderon,

, 1274 10 | (9th Cir. 2001). Furthermore, to the extent that Petitioner might contend that his 11 || petition meets an exception to the bar on successive petitions, his argument must first 12 || be presented to the Court of Appeals. 7 13 IT THEREFORE IS ORDERED that this action be dismissed without 14 || prejudice for lack of jurisdiction. 15 LET JUDGMENT BE ENTERED ACCORDINGLY.

17 || DATED: May 12, 2020 ELS 18 UY if 19 JAMES V.SELNA 30 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 || 2 Pursuant to Ninth Circuit Rule No. 22-3(a), when a request for authorization to file a successive 26 || petition is “mistakenly submitted” to a district court, it must be referred to the Ninth Circuit. Rule 22-3(a) also provides that a district court may refer such a petition to the Ninth Circuit when to so 27 || would serve the interests of justice. Neither circumstance is present in this case. Nevertheless, the Clerk is directed to mail petitioner a copy of Ninth Circuit Form 12 so that petitioner may file an 28 application for leave to file a second or successive petition in the Court of Appeals.