1 2 3 4 JS-6 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION 11 12 13 ADRIAN SOLORIO, ) Case No. SACV 21-01006-ODW (AS) ) 14 Petitioner, ) ORDER OF DISMISSAL ) 15 ) v. ) 16 ) W. SULLIVAN, Warden, ) 17 ) Respondent. ) 18 ) 19 20 I. BACKGROUND 21 22 On June 3, 2021, Adrian Solorio (“Petitioner”), a California 23 state prisoner proceeding pro se, filed a Petition for Writ of 24 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 25 § 2254 (“Petition”). Petitioner challenges his 2009 conviction 26 for first degree murder, various firearm enhancements, and 27 sentence of life without the possibility of parole, in Orange 28 1 County Superior Court (Case No. 6CF1702). (See Petition at 2).1 2 The Petition alleges the following grounds for federal habeas 3 relief: (1) Petitioner was wrongfully convicted and has the right 4 to have a handgun tested pursuant to California Penal Code 5 (“P.C.”) § 1405; (2) Petitioner was convicted with material false 6 evidence and has the right to bring a habeas corpus petition 7 pursuant to Senate Bill Section 1137; (3) The prosecution 8 intimidated Petitioner and made him violate his Fifth Amendment 9 right against self-incrimination, and the felony murder rule and 10 the natural and probable consequences doctrine have been amended 11 under Senate Bill 1437 (P.C. § 1170.95); (4) Firearm enhancements 12 should be stricken or dismissed under Senate Bill 620 (P.C. § 13 12022.53); and (5) Petitioner is entitled to a youth offender 14 parole hearing under Senate Bill 260 (P.C. § 3051(b)(1)). 15 (Petition at 5-6). 16 17 On July 19, 2012, Petitioner filed a Petition for Writ of 18 Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. 19 § 2254, in which he challenged the same 2009 conviction, firearm 20 enhancements, and sentence (“prior habeas action”). See Adrian 21 Solorio v. Ron Barnes, Warden, Case No. SACV 12-01175-R (AS); Dkt. 22 No. 1. On June 10, 2013, the Court issued an Order and Judgment 23 dismissing the prior habeas action with prejudice, in accordance 24 with the findings and recommendations of the assigned Magistrate 25 26 1 The Court takes judicial notice of the pleadings in Adrian Solorio v. Ron Barnes, Warden, Case No. SACV 12-01175-GAF 27 (RZ), which, on May 6, 2015, was transferred to the calendar of District Judge Manuel Real and the undersigned Magistrate Judge. 28 See SACV 12-01175-R (AS); Dkt. Nos. 52-53. 2 1 Judge. Id.; Dkt. Nos. 35-36. On the same date, the Court denied 2 Petitioner a certificate of appealability. Id.; Dkt. No. 37. On 3 May 20, 2014, the Ninth Circuit Court of Appeals denied 4 Petitioner’s request for a certificate of appealability. Id.; 5 Dkt. No. 46.2 6 7 II. DISCUSSION 8 9 The Antiterrorism and Effective Death Penalty Act of 1996 10 (“AEDPA”), enacted on April 24, 1996, provides in pertinent part 11 that: 12 13 (a) No circuit or district judge shall be 14 required to entertain an application for a writ of 15 habeas corpus to inquire into the detention of a 16 person pursuant to a judgment of a court of the 17 United States if it appears that the legality of such 18 detention has been determined by a judge or court of 19 the United States on a prior application for a writ 20 of habeas corpus, except as provided in §2255. 21 (b)(1) A claim presented in a second or 22 successive habeas corpus application under section 23 2254 that was presented in a prior application shall 24 be dismissed. 25 (2) A claim presented in a second or successive 26 27 2 The Court subsequently denied two Motions for Relief from Judgment pursuant to Fed.R.Civ.P 60(b)(6). Id.; Dkt. Nos. 28 54, 57, 3 1 habeas corpus application under section 2254 that was 2 not presented in a prior application shall be 3 dismissed unless-- 4 (A) the applicant shows that the claim relies on 5 a new rule of constitutional law, made retroactive to 6 cases on collateral review by the Supreme Court, that 7 was previously unavailable; or 8 (B)(i) the factual predicate for the claim could 9 not have been discovered previously through the 10 exercise of due diligence; and 11 (ii) the facts underlying the claim, if proven 12 and viewed in light of the evidence as a whole, would 13 be sufficient to establish by clear and convincing 14 evidence that, but for constitutional error, no 15 reasonable fact finder would have found the applicant 16 guilty of the underlying offense. 17 (3)(A) Before a second or successive application 18 permitted by this section is filed in the district 19 court, the applicant shall move in the appropriate 20 court of appeals for an order authorizing the 21 district court to consider the application. 22 (B) A motion in the court of appeals for an 23 order authorizing the district court to consider a 24 second or successive application shall be determined 25 by a three-judge panel of the court of appeals. 26 (C) The court of appeals may authorize the 27 filing of a second or successive application only if 28 it determines that the application makes a prima 4 1 facie showing that the application satisfies the 2 requirements of this subsection. 3 (D) The court of appeals shall grant or deny the 4 authorization to file a second or successive 5 application not later than 30 days after the filing 6 of the motion. 7 (E) The grant or denial of an authorization by 8 a court of appeals to file a second or successive 9 application shall not be appealable and shall not be 10 the subject of a Petition for Rehearing or for a Writ 11 of Certiorari. 12 (4) A district court shall dismiss any claim 13 presented in a second or successive application that 14 the court of appeals has authorized to be filed 15 unless the applicant shows that the claim satisfies 16 the requirements of this section.

. 17 18

(b)(3) “creates a ‘gatekeeping’ mechanism for 19 the consideration of second or successive applications in district 20 court. The prospective applicant must file in the court of 21 appeals a motion for leave to file a second or successive habeas 22 application in the district court. § 2244(b)(3)(A).” Felker v. 23 Turpin,

(1996). 24 25 The instant Petition and the prior habeas action challenge 26 Petitioner’s custody pursuant to the same 2009 judgment entered 27 by the Orange County Superior Court. Accordingly, the instant 28 Petition, filed on June 3, 2021, well after the effective date of 5 1 the AEDPA, is a second or successive habeas petition for purposes 2 of

. Therefore, Petitioner was required to obtain 3 authorization from the Court of Appeals before filing the present 4 Petition. See

(b)(3)(A). No such authorization 5 has been obtained in this case. 6 7 Moreover, the claims asserted in the instant Petition do not 8 appear to fall within the exceptions to the bar on second or 9 successive petitions because the asserted claims are not based on 10 newly discovered facts or a “a new rule of constitutional law, 11 made retroactive to cases on collateral review by the Supreme 12 Court, that was previously unavailable.” Tyler v. Cain,

656, 662 (2001); see also Johnson v. California,

, 14 at n.3 (C.D. Cal. Sept. 10, 2019)(“[A] new state right afforded 15 by an amended state statute does not create a new federal 16 constitutional right and certainly is not the equivalent of a 17 federal constitutional right newly recognized by the United States 18 Supreme Court and made retroactively applicable to cases on 19 collateral review.”; quoting Trejo v. Sherman,

, 20 at *2 (C.D. Cal. Oct. 24, 2016), report and recommendation 21 accepted,

(C.D. Cal. Nov. 18, 2016)). However, 22 this determination must be made by the United States Court of 23 Appeals upon a petitioner’s motion for an order authorizing the 24 district court to consider his second or successive petition. 28

(b); see Burton v. Stewart,

(2007) 26 (where the petitioner did not receive authorization from the Court 27 of Appeals before filing second or successive petition, “the 28 District Court was without jurisdiction to entertain [the 6 petition]”); Barapind v. Reno,

(9th Cir. 2000) (“[T]he prior-appellate-review mechanism set forth in § 2244 (b) requires the permission of the court of appeals before ‘a second successive habeas application under § 2254’ may be commenced.”). 6 7 Because Petitioner has not obtained authorization from the 8i}Ninth Circuit Court of Appeals, this Court cannot entertain the 9ilpresent Petition. See Burton v. Stewart,

. 10 11 IIt. ORDER 12 13 ACCORDINGLY, IT IS ORDERED that the Petition be dismissed without prejudice. 15 16 LET JUDGMENT BE ENTERED ACCORDINGLY. 17 18 |] DATED: June 10, 2021 re 19 SG’ 4 20 AE OTIS . RIGHT, II 21 UNITED STAT DISTRICT JUDGE 22 23 24 25 26 27 28