1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 LAVELL GATEWOOD, Case No. CV 20-7892-JAK (RAO)

12 Petitioner, ORDER SUMMARILY 13 v. DISMISSING SUCCESSIVE PETITION FOR WRIT OF HABEAS 14 J. GASTELO, CORPUS FOR LACK OF JURISDICTION AND DENYING 15 Respondent. CERTIFICATE OF APPEALABILITY 16 17 I. BACKGROUND 18 On August 27, 2020, Petitioner LaVell Gatewood (“Petitioner”) filed a Petition 19 for Writ of Habeas Corpus by a Person in State Custody (“Petition”) pursuant to 28

. (See Pet., Dkt. No. 1.) Petitioner seeks habeas relief in connection 21 with his current state custody arising from his 2008 conviction in Los Angeles 22 County Superior Court, case number YA066864-01. (Pet. at 2.) 23 The records of this Court establish that Petitioner instituted a prior habeas 24 action concerning his 2008 conviction. See Gatewood v. Cate, Case No. 25 2:10-cv-10085-SJO-OP (C.D. Cal. filed Dec. 30, 2010).1 In Petitioner’s prior habeas 26 1 The Court takes judicial notice of these court records and files as well as those of the Court 27 of Appeals for the Ninth Circuit, as necessary herein. See Fed. R. Evid. 201(b)(2); Harris v. Cnty. of Orange,

(9th Cir. 2012); United States v. Wilson,

, 119 28 (9th Cir. 1980). 1 action, the Court denied with prejudice the operative petition. See Gatewood v. Cate, 2 No. 2:10-cv-10085-SJO-OP (C.D. Cal. Nov. 22, 2011) (order adopting Report and 3 Recommendation and Judgment), ECF Nos. 21, 22.2 Thereafter, the Ninth Circuit 4 Court of Appeals denied a request for a certificate of appealability and closed the 5 case. See Gatewood v. Cate, Case No. 2:10-cv-10085-SJO-OP (C.D. Cal. Jan. 22, 6 2013), ECF No. 27. 7 A review of the instant Petition demonstrates that Petitioner again seeks federal 8 habeas relief concerning the same 2008 conviction. (Pet. at 2.) Neither the Petition 9 itself nor the records of the Ninth Circuit establish that the Ninth Circuit has 10 authorized Petitioner to bring a successive petition in this Court. 11 II. DISCUSSION 12 The United States Supreme Court has explained: 13 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) established a stringent set of procedures that a 14 prisoner “in custody pursuant to the judgment of a State 15 court,”

(a), must follow if he wishes to file a “second or successive” habeas corpus application 16 challenging that custody, § 2244(b)(1). In pertinent part, 17 before filing the application in the district court, a prisoner “shall move in the appropriate court of appeals for an order 18 authorizing the district court to consider the application.” 19 § 2244(b)(3)(A). A three-judge panel of the court of appeals may authorize the filing of the second or successive 20 application only if it presents a claim not previously raised 21 that satisfies one of the two grounds articulated in § 2244(b)(2). § 2244(b)(3)(C); Gonzalez v. Crosby, 545

,

,

(2005); see also Felker v. Turpin,

,

,

(1996). 24 Burton v. Stewart,

,

,

(2007). 25 // 26

27 2 In August 2013, the Court denied without prejudice one further habeas petition, challenging the same 2008 conviction, for being successive. See Gatewood v. Swarthout, Case No. 28 2:13-cv-05296-SJO-OP (C.D. Cal. August 8, 2013), ECF Nos. 6, 7. 1 The Court finds that Petitioner’s present Petition is clearly a “second or 2 successive” habeas petition. Moreover, the Petition and records of the Ninth Circuit 3 establish that Petitioner has not sought, and been granted, authorization by the Ninth 4 Circuit to file a successive petition to raise his claims. 5 For these reasons, the Court finds that it lacks jurisdiction to consider the 6 Petition. Therefore, the reference to the Magistrate Judge is vacated and the Petition 7 is dismissed for lack of jurisdiction. See Burton,

. The Clerk is 8 directed to enter judgment dismissing the Petition. Because the Court must dismiss 9 the Petition, any pending motions are denied as moot. 10 III. CERTIFICATE OF APPEALABILITY 11 Under AEDPA, a state prisoner seeking to appeal a district court’s final order 12 in a habeas corpus proceeding must obtain a Certificate of Appealability (“COA”) 13 from the district judge or a circuit judge.

(c)(1)(A). A COA may 14 issue “only if the applicant has made a substantial showing of the denial of a 15 constitutional right.”

(c)(2). “A petitioner satisfies this standard by 16 demonstrating that jurists of reason could disagree with the district court’s resolution 17 of his constitutional claims or that jurists could conclude the issues presented are 18 adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537

, 327,

,

(2003). 20 When the Court dismisses a petition on procedural grounds, it must issue a 21 COA if the petitioner shows: (1) “that jurists of reason would find it debatable 22 whether the petition states a valid claim of the denial of a constitutional right”; and 23 (2) “that jurists of reason would find it debatable whether the district court was 24 correct in its procedural ruling.” Slack v. McDaniel,

,

1595,

(2000). 26 Here, the Court is dismissing the Petition without prejudice because it is a 27 successive petition without proper authorization from the Ninth Circuit. Since the 28 Petition is patently a successive petition, Petitioner cannot make the requisite 1 || showing that jurists of reason would find it debatable whether the district court was 2 || correct in its procedural ruling. 3 IV. ORDER 4 Based on the foregoing, IT IS ORDERED THAT: 5 1. The Petition is DISMISSED without prejudice for lack of jurisdiction; and 6 2. A Certificate of Appealability is DENIED. 7 g || DATED: September 3, 2020 Wn IA 9 JOHN A. KRONSTADT 10 UNITED STATES DISTRICT JUDGE 11 12 || Presented by: Repth a. OL

15 || ROZELLA A. OLIVER 16 UNITED STATES MAGISTRATE JUDGE

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