1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 EASTERN DIVISION 11 12 LARRY LEE JACKS, ) No. ED CV 21-104-JFW (PLA) ) 13 Petitioner, ) ) ORDER DISMISSING SUCCESSIVE 14 v. ) PETITION WITHOUT PREJUDICE ) 15 WARDEN LYNCH, ) ) 16 Respondent. ) ) 17 18 I. 19 BACKGROUND 20 On January 15, 2021, petitioner filed a Petition for Writ of Habeas Corpus. In 2016, 21 petitioner was convicted of robbery (

) in the San Bernardino County 22 Superior Court, and was sentenced to a state prison term of forty years to life. He is currently 23 incarcerated at California State Prison, Sacramento. (ECF No. 1 at 2). The Petition challenges 24 petitioner’s 2016 conviction on the ground that his constitutional rights were violated because his 25 arraignment took place five days after his arrest.1 (Id. at 3). 26 27 1 As petitioner is in custody pursuant to a state court judgment, the Court construes the 28 1 In March 2020, petitioner filed an earlier habeas petition in this Court (the “2020 Petition”). 2 (Case No. ED CV 20-628-JFW (PLA), ECF No. 1). The 2020 Petition also challenged petitioner’s 3 2016 conviction, and contained two grounds for relief: (1) petitioner was mentally incompetent at 4 the time of his trial, and his trial counsel provided ineffective assistance for failing to adequately 5 investigate petitioner’s mental health; and (2) the attorney-client privilege was violated at the 6 hearing on petitioner’s motion for a new trial. (Id.). Judgment was entered on September 1, 2020, 7 dismissing the 2020 Petition with prejudice, and a certificate of appealability was denied. (Id., ECF 8 Nos. 13, 22-24). Petitioner filed a notice of appeal in the Ninth Circuit, which is currently pending. 9 (Id., ECF No. 26). 10 11 II. 12 DISCUSSION 13 A federal habeas petition is successive if it raises claims that were or could have been 14 adjudicated on the merits in a previous petition. Cooper v. Calderon,

(9th 15 Cir. 2001) (per curiam). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) 16 provides that a claim presented in a second or successive federal habeas petition that was not 17 presented in a prior petition shall be dismissed unless: 18 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was 19 previously unavailable; or 20 (B)(i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and 21 (ii)the facts underlying the claim, if proven and viewed in light of the evidence as a 22 whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty 23 of the underlying offense. 24

(b)(2)(A), (B). 25 Furthermore, “[b]efore a second or successive application . . . is filed in the district court, 26 the applicant shall move in the appropriate court of appeals for an order authorizing the district 27 court to consider the application.”

(b)(3)(A). 28 1 As set forth above, petitioner’s 2020 Petition was dismissed with prejudice. As both the 2 2020 Petition and instant Petition challenge petitioner’s 2016 conviction, the Court concludes that 3 the instant Petition is successive. Although it does not appear that petitioner satisfies any of the 4 exceptions listed in

(b)(2)(A) or (B), even if he could make such a showing, he 5 is still required to request and obtain authorization from the Ninth Circuit before filing a successive 6 petition.

(b)(3)(A); Burton v. Stewart,

,

, 166

(2007) (AEDPA requires petitioner to receive authorization from the court of appeals 8 before filing a second habeas petition). Because there is no indication that petitioner has obtained 9 such authorization from the Ninth Circuit, the Court is without jurisdiction to entertain the instant 10 Petition. SeeBurton,

; Cooper,

(“‘When the AEDPA is in play, the 11 district court may not, in the absence of proper authorization from the court of appeals, consider a 12 second or successive habeas application.’”). 13 Accordingly, dismissal of the instant Petition without prejudice as successive is appropriate.2 14 / 15 / 16 / 17 / 18 / 19 / 20 / 21 22 2 If petitioner wishes to make a successive habeas application, he must file a “Motion for Order Authorizing District Court to Consider Second or Successive Petition Pursuant to 28

(b)(3)(A)” directly with the Ninth Circuit Court of Appeals. Until the Ninth Circuit 24 issues such an order, any direct or implied request for a second or successive petition for writ of habeas corpus is barred by § 2244(b) and must be dismissed without prejudice to 25 petitioner’s right to seek authorization from the Ninth Circuit to file the petition. If petitioner obtains permission from the Ninth Circuit Court of Appeals to file a 26 successive petition, he should file a new petition for writ of habeas corpus. He should not file an amended petition in this action or use the case number from this action because the 27 instant action is being closed today. If petitioner files a new petition, the Court will give that 28 petition a new case number. 1 Hil. 2 CONCLUSION 3 IT IS THEREFORE ORDERED that this action is dismissed without prejudice as 4] successive. 5 DATED: _ January 27, 2021 GE CLE IGNORABLE JOHN F. WALTER 7 UNITED STATES DISTRICT JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28