1 9 JS-6 3 4 5 6 7 8 9 IN THE UNITED STATES DISTRICT COURT 10 FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 12 Case No. CV 20-10934 ODW (MRW) 13 | HENRY EDWARD DIAZ, Petitioner ORDER DISMISSING ACTION 14 WITHOUT PREJUDICE 15 Vv. 16 | STU SHERMAN, Warden, 17 Respondent. 18 19 qe wos The Court summarily dismisses Petitioner’s habeas action without 20 prejudice as successive under

. 21 22 ws . 1. Petitioner is a state prisoner serving a sixteen-year prison term 23 for manslaughter. 24 2. Petitioner previously sought federal habeas relief in this 25 district regarding his manslaughter conviction. The Court denied relief on 26 the merits. Diaz v. Sherman, CV 19-591 ODW (MRW) (C.D. Cal.). 27 28

1 According to the Court’s docket, Petitioner did not seek appellate review of 2 that decision. 3 3. The current petition appears to challenge his manslaughter 4 conviction again. However, the petition was not accompanied by a 5 certificate from the Ninth Circuit authorizing a second or successive 6 petition under

. 7 4. The Attorney General moved to dismiss the action as an 8 unauthorized second or successive petition under

. Under 9 that provision of AEDPA, the Attorney General contends the Court does 10 not have jurisdiction over the current action. (Docket # 5.) 11 5. Magistrate Judge Wilner ordered Petitioner to file a response 12 to Respondent’s dismissal motion. The order expressly advised Petitioner 13 that failure to respond to the order may result in a recommendation that 14 the matter be dismissed for failure to prosecute. (Docket # 6.) 15 6. Petitioner failed to submit a timely response. Judge Wilner 16 then ordered Petitioner to show cause why the government’s motion to 17 dismiss should not be granted, and why he failed to oppose the motion as 18 required by the local rules. The OSC also warned Petitioner that his 19 failure to respond will lead to a dismissal recommendation. (Docket # 7.) 20 7. To date, Petitioner has not responded to Judge Wilner’s order 21 to show cause or the government’s dismissal motion. 22 * * * 23 8. If it “appears from the application that the applicant or person 24 detained is not entitled” to habeas relief, a court may summarily dismiss a 25 habeas action.

; see also Rule 4 of Rules Governing 26 Section 2254 Cases in United States District Courts (petition may be 27 summarily dismissed if petitioner plainly not entitled to relief); Local Civil 28 1 Rule 72-3.2 (magistrate judge may submit proposed order for summary 2 dismissal to district judge “if it plainly appears from the face of the petition 3 [ ] that the petitioner is not entitled to relief”). 4 9. Under federal law, a state prisoner is generally required to 5 present all constitutional challenges to a state conviction in a single federal 6 action. “Before a second or successive [habeas petition] is filed in the 7 district court, the applicant shall move in the appropriate court of appeals 8 for an order authorizing the district court to consider the application.” 9

(b)(3)(A) (emphasis added). A prisoner must obtain 10 authorization from the Court of Appeals to pursue such a successive habeas 11 petition before the new petition may be filed in district court. Id.; Burton v.

U.S. 147, 156 (2007) (district court without jurisdiction to 13 consider successive habeas action when prisoner “neither sought nor 14 received authorization from the Court of Appeals before filing”). 15 10. “If the petition is second or successive, then the district court 16 lacks jurisdiction and must dismiss the petition unless and until the court 17 of appeals grants an application to file it.” Brown v. Muniz,

, 18 667, 676 (9th Cir. 2018) (“petitioner’s burden is higher” under statute to 19 bring successive habeas action); Prince v. Lizzaraga,

, 384 20 (9th Cir. 2018) (prisoner “must first apply to this [appellate] court for 21 permission to have his petition heard in the district court”). 22 11. Local Rule of Court 7-9 requires a party to file a memorandum 23 stating the basis for that party’s opposition to a motion. Local Rule 7-12 24 states that the “failure to file any required document [ ] may be deemed 25 consent to the granting or denial of the motion.” 26 * * * 27 28 1 12. Petitioner’s current habeas action is subject to summary 2 | dismissal. The petition challenges the same manslaughter conviction for 3 | which he already received habeas review in this federal court. Petitioner 4 | does not appear to have obtained permission from the Ninth Circuit to 5 | bring a new habeas action in this Court. 6 13. Further, despite a clear scheduling order from the assigned 7 | magistrate judge and subsequent OSC, Petitioner failed to file a timely 8 | opposition in response to the motion. Petitioner’s failure to respond to the 9 | dismissal motion signifies his consent to the dismissal of the action as 10 | successive. L.R. 7-12. 11 14. For these reasons, the Court does not have jurisdiction under 12 | Section 2244(b)(3)(A) to review Petitioner’s habeas claims. The current 13 | petition must be dismissed for lack of jurisdiction.

(b); 14 | Burton, 549 U.S. at 156; Brown,

; Prince, 733 F. App’x at 15 | 384. 16 kok ok 17 Therefore, the present action is hereby DISMISSED without 18 | prejudice as successive. 19 IT IS SO ORDERED. 90 a . 21

22 | Dated: April 14, 2021 93 HON. OTIS D. WRIGHT II UNITED STATES DISTRICT JUDGE 24 | Presented by: 25 Vil] 27 | HON. MICHAEL R. WILNER 28 | UNITED STATES MAGISTRATE JUDGE