1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 RUBEN HERRERA, ) Case No. EDCV 21-0329-CJC (JPR) ) 12 Petitioner, ) ) ORDER SUMMARILY DISMISSING 13 v. ) PETITION FOR WRIT OF HABEAS ) CORPUS FOR LACK OF SUBJECT-MATTER 14 SECRETARY OF CORRECTIONS, ) JURISDICTION ) 15 Respondent. ) ) 16 17 On March 2, 2021, Petitioner filed a Habeas Corpus Petition 18 under

. It challenges his 2014 convictions and 19 sentence in Los Angeles County Superior Court for various sex- 20 related offenses. (Pet. at 2.)1 21 This is not Petitioner’s first federal habeas petition, 22 however. His 2017 petition challenging the same judgment was 23 denied as untimely. See R. & R., Herrera v. Sec’y of Corrs., No. 24 CV 17-5874-CJC (JPR),

, at *11 (C.D. Cal. Apr. 5, 25 26 1 In both this Petition and the earlier one discussed herein, Petitioner describes his convictions as having occurred in 2013. 27 In fact, he was convicted in July 2014. See Lodged Doc. 1, 3 28 Clerk’s Tr. at 626-32, Herrera v. Sec’y of Corrs., No. CV 17-5874- CJC (JPR) (C.D. Cal. filed Sept. 8, 2017), ECF No. 22. 1 1 2018), accepted by

(C.D. Cal. July 12, 2018). 2 Petitioner appealed to the Ninth Circuit Court of Appeals, which 3 declined to issue him a certificate of appealability. See 4 Herrera v. Sec’y of Corrs., No. 18-56045,

(9th 5 Cir. Mar. 18, 2019) (order denying certificate of appealability). 6 The Antiterrorism and Effective Death Penalty Act of 1996 7 provides, in

(b), as follows: 8 (1) A claim presented in a second or successive 9 habeas corpus application under section 2254 that was 10 presented in a prior application shall be dismissed. 11 (2) A claim presented in a second or successive 12 habeas corpus application under section 2254 that was not 13 presented in a prior application shall be dismissed 14 unless — 15 (A) the applicant shows that the claim relies 16 on a new rule of constitutional law, made 17 retroactive to cases on collateral review by the 18 Supreme Court, that was previously unavailable; or 19 (B) (i) the factual predicate for the claim 20 could not have been discovered previously through 21 the exercise of due diligence; and 22 (ii) the facts underlying the claim, if 23 proven and viewed in light of the evidence as 24 a whole, would be sufficient to establish by 25 clear and convincing evidence that, but for 26 constitutional error, no reasonable factfinder 27 would have found the applicant guilty of the 28 underlying offense. 2 1 (3) (A) Before a second or successive application 2 permitted by this section is filed in the district court, 3 the applicant shall move in the appropriate court of 4 appeals for an order authorizing the district court to 5 consider the application. 6 The pending Petition is a second or successive petition 7 within the meaning of § 2244(b) because it challenges the same 8 judgment of conviction as Petitioner’s earlier habeas petition, 9 the denial of which was affirmed by the Ninth Circuit when it 10 refused to grant him a certificate of appealability. Petitioner 11 does not claim that there has been any intervening revised 12 judgment, nor is one apparent from the Court’s review of the 13 California Appellate Courts Case Information website. Under 14 § 2244(b)(3)(A), then, Petitioner was required to secure an order 15 from the Ninth Circuit authorizing the filing of his current 16 Petition. See McNabb v. Yates,

(9th Cir. 17 2009) (holding that even when first petition was dismissed as 18 untimely, subsequent petition is second or successive and 19 requires prior authorization to file). The Court’s review of the 20 Ninth Circuit’s docket indicates that he has never asked for, 21 much less received, permission from that court to file a 22 successive petition. 23 For the foregoing reasons, IT IS ORDERED that this action be 24 summarily dismissed without prejudice under Rule 4 of the Rules 25 Governing § 2254 Cases in the U.S. District Courts.2 Petitioner 26 27 2 That rule states in pertinent part as follows: “If it 28 plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the 3 1 || may not file another petition challenging the same judgment 2 unless and until he receives permission from the Ninth Circuit to 3 | do so. 4 LET JUDGMENT BE ENTERED ACCORDINGLY.

6 || patep: March 16, 2021 CORMAC J. CARNEY 7 U.S. DISTRICYW JUDGE 8 || Presented by: 9 | fm Prenblatl~ 10 || Jean Rosenbluth ~— U.S. Magistrate Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27. | 28 judge must dismiss the petition and direct the clerk to notify the petitioner.”