1 2 3 4 5

6

7

8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA

10 ALEJANDRO ESPINOZA, ) NO. CV 20-8334-MWF (KS) 11 ) Petitioner, 12 ) ORDER: DISMISSING PETITION FOR v. ) 13 ) WRIT OF HABEAS CORPUS WITHOUT 14 CATE, et al, ) PREJUDICE; AND DENYING ) CERTIFICATE OF APPEALABILITY 15 Respondents. ) 16 _________________________________ )

17 18 On September 9, 2020, Alejandro Espinoza (“Petitioner”), a California state prisoner 19 proceeding pro se, filed a Petition for Writ of Habeas Corpus by a Person in State Custody 20 (the “Petition”) under

. (Dkt. No. 1.) In the Petition, Petitioner challenges a 21 2007 state court conviction for burglary, attempted first degree burglary in concert, and, inter 22 alia, assault with a deadly weapon. (Petition at 2.) This Court previously denied a prior habeas 23 petition filed by Petitioner challenging the same conviction. Espinoza v. Sandor, C.D. Cal. 24 CV 09-6228-PSG (FFM), at Dkt. Nos. 1 (“2009 Petition”), 11 (“2012 Report”), 15 (“2012 25 Judgment”). Petitioner appealed to the Ninth Circuit and the United States Supreme Court. 26 The Ninth Circuit denied Petitioner’s request for a certificate of appealability,

at Dkt. No. 27 20; see also Espinoza v. Sandor, No. 12-55350, at Dkt. No. 5 (Mar. 1, 2013), and the United 28 1 States Supreme Court denied Petitioner’s petition for writ of certiorari, Espinoza v. Valenzuela, 2 No. 12-10395 (Oct. 7, 2013). 3 4 Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, 5 28 U.S.C. foll. § 2254 (“Habeas Rules”), requires a district court to dismiss a petition without 6 ordering a responsive pleading where “it plainly appears from the petition and any attached 7 exhibits that the petitioner is not entitled to relief.” Habeas Rule 4. For the reasons set forth 8 below, the Petition must be, and is, DISMISSED as second or successive, pursuant to 28

(b) and Rule 4. 10 11 BACKGROUND 12 13 Petitioner appealed his 2007 conviction in the California Court of Appeal, which 14 affirmed the judgment of the trial court on July 30, 2008. (See 2012 Report at Ex. A.) 15 Petitioner appealed to the California Supreme Court, which denied the petition for review in 16 October 2008. (2009 Petition at 3); see also Docket (Register of Actions), People v. Espinoza, 17 No. S166430 (Oct. 16, 2008), available at https://appellatecases.courtinfo.ca.gov (last visited 18 Sep. 15, 2020). Petitioner filed a habeas petition in this Court on August 26, 2009 (see 2009 19 Petition), in which he alleged that there was insufficient evidence to sustain his conviction for 20 attempted robbery and burglary and that trial counsel was ineffective because he failed to 21 object to the admission of a statement by Petitioner’s co-defendant. The Court denied with 22 2009 Petition on its merits and with prejudice on February 10, 2012. (See 2012 Report; 2012 23 Judgment.) 24 25 The instant Petition, like the 2009 Petition, concerns Petitioner’s 2007 conviction. 26 However, there is no indication from either the Petition itself or the Ninth Circuit’s docket that 27 the Ninth Circuit has granted Petitioner leave to file a second or successive petition in this 28 Court. See also United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 1

(9th Cir. 1992) (“we may take notice of proceedings in other courts, both 2 within and without the federal judicial system, if those proceedings have a direct relation to 3 matters at issue”) (internal quotation marks and citations omitted). 4 5 DISCUSSION 6 7 State habeas petitioners generally may file only one federal habeas petition challenging 8 a particular state conviction and/or sentence. See, e.g.,

(b). “[A] federal 9 habeas petition is second or successive if the facts underlying the claim occurred by the time 10 of the initial petition, and if the petition challenges the same state court judgment as the initial 11 petition.” Brown v. Muniz,

(9th Cir. 2018) (citing Panetti v. Quarterman, 12

(2007) and Magwood v. Patterson,

(2010)); see also 13 McNabb v. Yates,

(9th Cir. 2009) (“A habeas petition is second or 14 successive . . . if it raises claims that were or could have been adjudicated on the merits” in an 15 earlier Section 2254 petition). There are some exceptions to this rule. See

2244(b)(2). Most notably, a claim presented in a second or successive habeas corpus 17 application shall not be dismissed if, inter alia, the factual predicate for the claim could not 18 have been discovered previously through the exercise of due diligence and the facts underlying 19 the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to 20 establish by clear and convincing evidence that, but for constitutional error, no reasonable 21 factfinder would have found the petitioner guilty.

(b)(2)(B). 22 23 However, even when Section 2244(b) provides a basis for pursuing a second or 24 successive Section 2254 habeas petition, state habeas petitioners seeking relief in this district 25 court must first obtain authorization from the Ninth Circuit before filing any such second or 26 successive petition.

(b)(3). The Ninth Circuit “may authorize the filing of 27 the second or successive [petition] only if it presents a claim not previously raised that satisfies 28 1 one of the two grounds articulated in § 2242(b)(2).” Burton v. Stewart,

, 153 2 (2007). 3 4 In his 2009 Petition, Petitioner sought Section 2254 relief based on the same state 5 conviction at issue here. This Court dismissed the 2009 Petition with prejudice. Accordingly, 6 the current Petition is second or successive within the meaning of Section 2244(b). Petitioner 7 alleges that he received ineffective assistance of counsel during his direct appeal and, for the 8 second time, asserts that he is entitled to habeas relief because there was insufficient evidence 9 to support his conviction for burglary in the first degree. (Petition at 5.) However, there is no 10 indication from either the Petition or the Ninth Circuit’s docket that he has received leave from 11 the Ninth Circuit to bring a second or successive Section 2254 petition. Because Petitioner 12 has not obtained permission from the Ninth Circuit to bring a second or successive Section 13 2254 petition raising the claim(s) alleged in the instant Petition, this Court lacks jurisdiction 14 to consider the Petition.

(b); see also Burton,

(district court 15 lacks jurisdiction to consider the merits of a second or successive petition absent prior 16 authorization from the circuit court). 17 18 Consequently, IT IS ORDERED that: the Petition is DISMISSED; and Judgment shall 19 be entered dismissing this action without prejudice. If Petitioner receives leave from the Ninth 20 Circuit to raise his claims in a second or successive Section 2254 petition in this Court, he may 21 file a habeas petition at that time. 22 \\ 23 \\ 24 \\ 25 \\ 26 \\ 27 \\ 28 \\ 1 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 Cases in the 2 || United States District Courts, the Court has considered whether a certificate of appealability 3 || is warranted in this case. See

(c)(2); Slack v. McDaniel,

, 484- 4 || 85 (2000).! The Court concludes that a certificate of appealability is unwarranted, and thus, a 5 || certificate of appealability is DENIED. 6 / — 7 || DATED: September 16, 2020 yy: g MICHAEL W. FI LD | UNITED STATES DIS T JUDGE ? Presented by: 10 Prawn Leese 11 KAREN L, STEVENSON UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 ———— ! “Where a plain procedural bar is present and the district court is correct to invoke it to dispose of the case, a 27 reasonable jurist could not conclude either that the district court erred in dismissing the petition or that the petitioner should 28 be allowed to proceed further. In such a circumstance, no appeal would be warranted.” Slack v. McDaniel,

(2000).