1 2 JS-6 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA-SOUTHERN DIVISION 11 12 13 ADRIAN SOLORIO, ) Case No. SACV 21-01038-ODW (AS) ) 14 Petitioner, ) ORDER OF DISMISSAL ) 15 ) v. ) 16 ) W. SULLIVAN, Warden, ) 17 ) Respondent. ) 18 ) 19 20 I. BACKGROUND 21 22 On June 9, 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).2 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 22 1 The Court takes judicial notice of the pleadings in 23 Adrian Solorio v. Ron Barnes, Warden, Case No. SACV 12-01175-GAF (RZ), which, on May 6, 2015, was transferred to the calendar of 24 District Judge Manuel Real and the undersigned Magistrate Judge. See SACV 12-01175-R (AS); Dkt. Nos. 52-53. 25 2 On June 3, 2021, Petitioner filed a habeas petition 26 which appears to contain the same allegations as the Petition. See Adrian Solorio v. W. Sullivan, Warden, Case No. SACV 21- 27 01006-ODW (AS); Dkt. No. 1. On June 10, 2021, the Court dismissed that habeas petition without prejudice as an 28 unauthorized, successive petition. Id.; Dkt. No. 3. 2 1 Solorio v. Ron Barnes, Warden, Case No. SACV 12-01175-R (AS); Dkt. 2 No. 1. On June 10, 2013, the Court issued an Order and Judgment 3 dismissing the prior habeas action with prejudice, in accordance 4 with the findings and recommendations of the assigned Magistrate 5 Judge. Id.; Dkt. Nos. 35-36. On the same date, the Court denied 6 Petitioner a certificate of appealability. Id.; Dkt. No. 37. On 7 May 20, 2014, the Ninth Circuit Court of Appeals denied 8 Petitioner’s request for a certificate of appealability. Id.; 9 Dkt. No. 46.3 10 11 II. DISCUSSION 12 13 The Antiterrorism and Effective Death Penalty Act of 1996 14 (“AEDPA”), enacted on April 24, 1996, provides in pertinent part 15 that: 16 17 (a) No circuit or district judge shall be 18 required to entertain an application for a writ of 19 habeas corpus to inquire into the detention of a 20 person pursuant to a judgment of a court of the 21 United States if it appears that the legality of such 22 detention has been determined by a judge or court of 23 the United States on a prior application for a writ 24 of habeas corpus, except as provided in §2255. 25 (b)(1) A claim presented in a second or 26 27 3 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 successive habeas corpus application under section 2 2254 that was presented in a prior application shall 3 be dismissed. 4 (2) A claim presented in a second or successive 5 habeas corpus application under section 2254 that was 6 not presented in a prior application shall be 7 dismissed unless-- 8 (A) the applicant shows that the claim relies on 9 a new rule of constitutional law, made retroactive to 10 cases on collateral review by the Supreme Court, that 11 was previously unavailable; or 12 (B)(i) the factual predicate for the claim could 13 not have been discovered previously through the 14 exercise of due diligence; and 15 (ii) the facts underlying the claim, if proven 16 and viewed in light of the evidence as a whole, would 17 be sufficient to establish by clear and convincing 18 evidence that, but for constitutional error, no 19 reasonable fact finder would have found the applicant 20 guilty of the underlying offense. 21 (3)(A) Before a second or successive application 22 permitted by this section is filed in the district 23 court, the applicant shall move in the appropriate 24 court of appeals for an order authorizing the 25 district court to consider the application. 26 (B) A motion in the court of appeals for an 27 order authorizing the district court to consider a 28 second or successive application shall be determined 4 1 by a three-judge panel of the court of appeals. 2 (C) The court of appeals may authorize the 3 filing of a second or successive application only if 4 it determines that the application makes a prima 5 facie showing that the application satisfies the 6 requirements of this subsection. 7 (D) The court of appeals shall grant or deny the 8 authorization to file a second or successive 9 application not later than 30 days after the filing 10 of the motion. 11 (E) The grant or denial of an authorization by 12 a court of appeals to file a second or successive 13 application shall not be appealable and shall not be 14 the subject of a Petition for Rehearing or for a Writ 15 of Certiorari. 16 (4) A district court shall dismiss any claim 17 presented in a second or successive application that 18 the court of appeals has authorized to be filed 19 unless the applicant shows that the claim satisfies 20 the requirements of this section.

. 21 22

(b)(3) “creates a ‘gatekeeping’ mechanism for 23 the consideration of second or successive applications in district 24 court. The prospective applicant must file in the court of 25 appeals a motion for leave to file a second or successive habeas 26 application in the district court. § 2244(b)(3)(A).” Felker v. 27 Turpin,

(1996). 28 5 1 The instant Petition and the prior habeas action challenge 2 Petitioner’s custody pursuant to the same 2009 judgment entered 3 by the Orange County Superior Court. Accordingly, the instant 4 Petition, filed on June 9, 2021, well after the effective date of 5 the AEDPA, is a second or successive habeas petition for purposes 6 of

. Therefore, Petitioner was required to obtain 7 authorization from the Court of Appeals before filing the present 8 Petition. See

(b)(3)(A). No such authorization 9 has been obtained in this case. 10 11 Moreover, the claims asserted in the instant Petition do not 12 appear to fall within the exceptions to the bar on second or 13 successive petitions because the asserted claims are not based on 14 newly discovered facts or a “a new rule of constitutional law, 15 made retroactive to cases on collateral review by the Supreme 16 Court, that was previously unavailable.” Tyler v. Cain,

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

, 18 at n.3 (C.D. Cal. Sept. 10, 2019)(“[A] new state right afforded 19 by an amended state statute does not create a new federal 20 constitutional right and certainly is not the equivalent of a 21 federal constitutional right newly recognized by the United States 22 Supreme Court and made retroactively applicable to cases on 23 collateral review.”; quoting Trejo v. Sherman,

, 24 at *2 (C.D. Cal. Oct. 24, 2016), report and recommendation 25 accepted,

(C.D. Cal. Nov. 18, 2016)). However, 26 this determination must be made by the United States Court of 27 Appeals upon a petitioner’s motion for an order authorizing the 28 district court to consider his second or successive petition. 28 6 1]}U.S.C. § 2244 (b); see Burton v. Stewart,

(2007) (where the petitioner did not receive authorization from the Court Appeals before filing second or successive petition, “the District Court was without jurisdiction to entertain [the 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 8llor successive habeas application under § 2254’ may be commenced.”). 10 1] Because Petitioner has not obtained authorization from the Ninth Circuit Court of Appeals, this Court cannot entertain the }/present Petition. See Burton v. Stewart,

. 14 15 IIt. ORDER 16 17 ACCORDINGLY, IT IS ORDERED that the Petition be dismissed without prejudice. 19 20 LET JUDGMENT BE ENTERED ACCORDINGLY. 21 22 || DATED: June 15, 2021 re = a“ 23 jp Pee 24 OTIS . RIGHT, II 25 UNITED STATES DISTRICT JUDGE 26 27 28