1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ST. MICHAEL BALZARINI, Case No. 5:21-cv-00482-RGK-MAA

12 Petitioner, ORDER SUMMARILY DISMISSING 13 ACTION WITHOUT PREJUDICE v. 14 R. BROOMFIELD, 15 Respondent. 16 17 18 On March 14, 2021, Petitioner St. Michael Balzarini, acting pro se, filed a 19 petition for a writ of habeas corpus pursuant to

(“Section 2254”) 20 (“Petition”). (Pet., ECF No. 1.) As discussed below, summary dismissal of the 21 action is appropriate. 22 23 I. BACKGROUND 24 Petitioner was convicted and sentenced in 1995 in the San Bernardino 25 County Superior Court. (See Pet. 2.) This is Petitioner’s fifth federal habeas action 26 in this District predicated on the 1995 conviction. The Court takes judicial notice of 27 Petitioner’s prior habeas cases in this District. See Fed. R. Evid. 201(b)(2) (“The 28 court may judicially notice a fact that is not subject to reasonable dispute because 1 it . . . can be accurately and readily determined from sources whose accuracy cannot 2 reasonably be questioned.”); Harris v. County of Orange,

, 1131–32 3 (9th Cir. 2012) (court may take judicial notice of “documents on file in federal or 4 state courts”); United States v. Wilson,

(9th Cir. 1980) (“[A] 5 court may take judicial notice of its own records in other cases . . . .”). 6 In Balzarini v. Cambria, No. 2:01-cv-04663-GLT-AN, Petitioner filed a 7 Section 2254 petition challenging his custody arising from his 1995 conviction. 8 The Magistrate Judge assigned to the action issued a report and recommendation of 9 dismissal for failure to comply with a court order, failure to prosecute, and 10 untimeliness. (See No. 2:01-cv-04663-GLT-AN, ECF No. 15.)1 On December 5, 11 2001, the District Judge adopted the report and recommendation and entered 12 judgment dismissing the petition with prejudice. (No. 2:01-cv-04663-GLT-AN, 13 ECF Nos. 20–21.) 14 In Balzarini v. Woodford, No. 5:05-cv-00222-FMC-AN, Petitioner filed 15 another Section 2254 petition challenging his custody arising from his 1995 16 conviction. On April 20, 2005, the Court entered judgment summarily dismissing 17 the petition without prejudice as an unauthorized second or successive petition. 18 (No. 5:05-cv-00222-FMC-AN, ECF Nos. 3–4.) 19 In Balzarini v. Grounds, No. 5:12-cv-00028-GHK-AN, Petitioner filed 20 another Section 2254 petition challenging his custody arising from his 1995 21 conviction. On January 23, 2012, the Court entered judgment summarily 22 dismissing the petition without prejudice as an unauthorized second or successive 23 petition. (No. 5:12-cv-00028-GHK-AN, ECF Nos. 5–6.) 24 In Balzarini v. Borders, No. 5:19-cv-01191-RGK-MAA, Petitioner filed 25 another petition challenging his custody arising from his 1995 conviction. On 26 27 1 This report and recommendation is not presently available in the Court’s electronic filing system. Consequently, the Clerk is directed to attach the report and 28 recommendation to this Order. 1 August 16, 2019, the Court entered judgment summarily dismissing the petition 2 without prejudice as an unauthorized second or successive petition. (No. 5:12-cv- 3 00028-GHK-AN, ECF Nos. 4–5.) 4 The pending Petition asserts claims challenging Petitioner’s custody arising 5 from his 1995 conviction and sentence. (See Petition 2, 5–6, 9–60.) Nowhere in 6 the Petition does Petitioner allege that he has sought leave from a United States 7 Court of Appeals to file a second or successive petition. (See generally Pet.) 8 9 II. THE PETITION IS SUBJECT TO SUMMARY DISMISSAL 10 Rule 4 of the Rules Governing Section 2254 Cases in the United States 11 District Courts requires summary dismissal of federal habeas petitions “[i]f it 12 plainly appears from the petition and any attached exhibits that the petitioner is not 13 entitled to relief in the district court.” See also C.D. Cal. L.R. 72-3.2 (authorizing a 14 magistrate judge to prepare a proposed order for summary dismissal and proposed 15 judgment for a district judge). 16

(b) limits habeas petitioners from asserting certain claims in 17 a second or successive petition without leave from a United States Court of 18 Appeals. As articulated by the United States Supreme Court: 19 The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) 20 established a stringent set of procedures that a prisoner “in custody 21 pursuant to the judgment of a State court,”

(a), must 22 follow if he wishes to file a “second or successive” habeas corpus 23 application challenging that custody, § 2244(b)(1). In pertinent part, 24 before filing the application in the district court, a prisoner “shall move 25 in the appropriate court of appeals for an order authorizing the district 26 court to consider the application.” § 2244(b)(3)(A). A three-judge 27 panel of the court of appeals may authorize the filing of the second or 28 successive application only if it presents a claim not previously raised 1 that satisfies one of the two grounds articulated in § 2244(b)(2). 2 § 2244(b)(3)(C); Gonzalez v. Crosby,

, 125 S. 3 Ct. 2641,

(2005); see also Felker v. Turpin, 518

, 656-657, 664,

,

(1996). 5 Burton v. Stewart,

(2007). District courts lack jurisdiction to 6 consider unauthorized successive petitions and must dismiss such petitions.

at 7 153; see also

(b)(2); Rishor v. Ferguson,

(9th 8 Cir. 2016). 9 The Petition is an unauthorized second or successive petition. Petitioner’s 10 2001 petition for writ of habeas corpus, which was predicated on his 1995 11 conviction and sentence, was dismissed as untimely. See Balzarini v. Cambria, No. 12 2:01-cv-04663-GLT-AN, ECF No. 15, adopted, ECF No. 20. A dismissal for 13 untimeliness operates as a disposition on the merits. McNabb v. Yates,

1028, 1029 (9th Cir. 2009). Accordingly, a subsequent petition challenging the 15 same conviction constitutes a “second or successive” habeas petition relative to the 16 2001 petition. See

The instant Petition is predicated on the same 1995 17 conviction and sentence challenged in Balzarini v. Cambria, No. 2:01-cv-04663- 18 GLT-AN, which the Court dismissed on the merits—not to mention the same 19 conviction and sentence challenged in three subsequent petitions—Balzarini v. 20 Woodford, No. 5:05-cv-00222-FMC-AN, Balzarini v. Grounds, No. 5:12-cv- 21 00028-GHK-AN, and Balzarini v. Borders, No. 5:19-cv-01191-RGK-MAA—all of 22 which the Court dismissed as second or successive. 23 Even if Petitioner could demonstrate that he qualifies for an exception to the 24 bar on successive petitions, he must have obtained permission from the Ninth 25 Circuit before bringing the claims in the instant Petition. Woods v. Carey,

886, 888 (9th Cir. 2008). Petitioner has not shown that he sought or obtained 27 authorization to file the instant Petition with any United States Court of Appeals. 28 (See generally Petition.) The Court’s independent search of the Ninth Circuit Court 1 || of Appeal’s dockets using the electronic PACER case locator function indicates 2 || Petitioner neither sought nor obtained such authorization. 3 Accordingly, this district court lacks jurisdiction to entertain the Petition, and 4 || summary dismissal is appropriate. 5 6 || I. THE COURT DENIES A CERTIFICATE OF APPEALABILITY 7 Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court 8 || “must issue or deny a certificate of appealability when it enters a final order adverse 9 || to the applicant.” The Court has found that the Petition should be dismissed 10 || without prejudice. For the reasons stated above, the Court concludes that Petitioner 11 || has not made a substantial showing of the denial of a constitutional right, as is 12 || required to support the issuance of a certificate of appealability. See

(c)(2). 14 15 | IV. CONCLUSION 16 IT IS THEREFORE ORDERED that the Petition be DISMISSED 17 | WITHOUT PREJUDICE. A certificate of appealability is DENIED. 18 19 | DATED: April 1, 2021 0 d “oO KReergpen 1 R. GARY KLAUSNER UNITED STATES DISTRICT JUDGE 22 °3 Presented by: 24 25 | yey 26 | MARIAA. AUDERO 97 || UNITED STATES MAGISTRATE JUDGE 28

1 ATTACHMENT 2 No. 2:01-cv-04663-GLT-AN, ECF No. 15 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28