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2 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 20-7846 GW (MRW) 13 CESAR NOEL HERNANDEZ, REPORT AND RECOMMENDATION 14 Petitioner, OF UNITED STATES MAGISTRATE 15 v. JUDGE 16 WARDEN, 17 Respondent. 18

19 20 The Court summarily dismisses this action pursuant to the 21 successive habeas petition rule under

and 2244. 22 * * * 23 Original Conviction and Federal Habeas Proceedings 24 1. Petitioner is currently serving a life term in state prison. In 25 2007, a state court jury convicted Petitioner of murder for shooting a man 26 to death at a cockfight. (Docket # 10-1 at 2, 11.) 27 2. In 2009 after the conclusion of his state appeals, Petitioner 28 filed a habeas petition in this Court under

. Hernandez v. 1 Yates, ED CV 09-1133 GW (RNB) (C.D. Cal.). The sole claim in the 2 petition challenged the proof supporting Petitioner’s conviction for 3 premeditated murder. The Court accepted the Report and 4 Recommendation of the previous magistrate judge (now-retired Judge 5 Block) to deny relief on Petitioner’s sufficiency-of-evidence claim. 6 Current Federal Habeas Action 7 3. In 2020, Petitioner filed the current action in this Court under 8 Section 2254. His First Amended Petition presents several claims alleging 9 the inadequacy of his trial lawyer’s performance, instructional error, and 10 prosecutorial misconduct. Petitioner also claims that he recently 11 discovered information about an injury he suffered in a knife attack in the 12 1980s when he lived in the Philippines. Petitioner contends that this “new” 13 evidence is relevant to a fight that Petitioner engaged in before he 14 committed the shooting for which he was criminally convicted. (Docket 15 # 4.) 16 4. Magistrate Judge Wilner screened the 2020 habeas action. 17 Judge Wilner noted that the action was not accompanied by a certificate 18 from the Ninth Circuit Court of Appeals authorizing a second habeas 19 action under

. (Docket # 3, 5.) 20 5. Even so, the California Attorney General was directed to 21 address the new action and evaluate Petitioner’s claim of newly discovered 22 evidence. The Attorney General moved to dismiss the action as successive 23 and untimely. (Docket # 10.) 24 6. Petitioner filed two pleadings in response to the dismissal 25 motion. (Docket # 17, 19.) The bulk of the opposition filings addressed the 26 merits of Petitioner’s claims. However, in his February 2021 submission, 27 Petitioner effectively acknowledged that his current action is successive. 28 1 Petitioner stated that he “will file a motion for leave to file a second 2 petition” pursuant to AEDPA. (Docket # 19 at 3.) A review of the district 3 court and Ninth Circuit dockets reveals that Petitioner has not done so to 4 date, though. 5 Relevant Law and Analysis 6 7. If it “appears from the application that the applicant or person 7 detained is not entitled” to habeas relief, a court may summarily dismiss a 8 habeas action.

; see also Rule 4 of Rules Governing 9 Section 2254 Cases in United States District Courts (petition may be 10 summarily dismissed if petitioner plainly not entitled to relief); Local Civil 11 Rule 72-3.2 (magistrate judge may submit proposed order for summary 12 dismissal to district judge “if it plainly appears from the face of the petition 13 [ ] that the petitioner is not entitled to relief”). 14 * * * 15 8. Under federal law, a state prisoner is generally required to 16 present all constitutional challenges to a state conviction in a single federal 17 action. “Before a second or successive [habeas petition] is filed in the 18 district court, the applicant shall move in the appropriate court of appeals 19 for an order authorizing the district court to consider the application.” 20

(b)(3)(A). 21 9. A prisoner must obtain authorization from the Court of 22 Appeals to pursue such a successive habeas petition before the new petition 23 may be filed in district court. Id.; Burton v. Stewart,

, 156 24 (2007) (district court without jurisdiction to consider successive habeas 25 action when prisoner “neither sought nor received authorization from the 26 Court of Appeals before filing”). 27 28 1 10. “If the petition is second or successive, then the district court 2 lacks jurisdiction and must dismiss the petition unless and until the court 3 of appeals grants an application to file it.” Brown v. Muniz,

, 4 667, 676 (9th Cir. 2018) (“petitioner’s burden is higher” under statute to 5 bring successive habeas action); Prince v. Lizzaraga,

, 384 6 (9th Cir. 2018) (prisoner “must first apply to this court for permission to 7 have his petition heard in the district court”). 8 * * * 9 11. Petitioner’s current habeas action is subject to summary 10 dismissal. The petition challenges the same murder conviction that was 11 the subject of his earlier habeas action in this Court. Petitioner presents 12 no proof that he asked for or received permission from the Ninth Circuit to 13 pursue another successive action. As a result, the current petition is 14 subject to summary dismissal.

(b); Brown,

667; Prince, 733 F. App’x at 384. 16 12. Because the Court does not have jurisdiction to consider the 17 merits of Petitioner’s habeas claims, it declines to address the Attorney 18 General’s alternative contention that the current action is untimely under 19 AEDPA.2 20 * * *

21 22 23 24 25 2 Further, to the extent that Petitioner alleges either a new factual 26 basis (discovery of his earlier knife injuries) or legal theory (a brief reference to the Supreme Court’s decision in Ramos v. Louisiana, ___ U.S. ___,

(2020) (Docket # 4 at 44)) for his current action, the first consideration of those issues is in the Court of Appeals as part of the successive petition authorization 28 process under Section 2244. i Petitioner’s current action is DISMISSED without prejudice as 2 | successive. 3 IT IS SO ORDERED. 4 5 6 | Datea: April 20, 2021 A fry KM, 44-—

HON. GEORGE WU UNITED STATES DISTRICT JUDGE

9 Presented by: 10 11 Lf [ , 12 HON. MICHAEL R. WILNER 13 | UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28