1

2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE CENTRAL DISTRICT OF CALIFORNIA 10 11 12 Case No. 2:21-cv-04872-ODW-PD DAVID SCONCE, 13 ORDER DISMISSING SECOND OR Petitioner, SUCCESSIVE HABEAS CORPUS 14 PETITION; DENYING v. CERTIFICATE OF 15 APPEALABILITY; AND 16 PATRICK COVELLO, Warden, REFERRING PETITION PURSUANT TO NINTH CIRCUIT 17 Respondent. RULE 22-3(a) 18

19 Before the Court is Petitioner’s third attempt to challenge his April 20 1997 plea to conspiracy to commit murder and lifetime probation sentence. 21 [See Dkt. Nos. 4-5.] 22 The first habeas petition challenging the plea proceedings was denied 23 and dismissed with prejudice after the Court reached its merits. See Sconce v. 24 California, Case No. 2:14-cv-2447-ODW-JC (C.D. Cal. 2018), Dkt. No. 78, 2018

, report and recommendation adopted, 2018 U.S. Dist. 26 27 28

. 2 Petitioner voluntarily dismissed his second habeas petition in February 2021, after this Court issued a Report and Recommendation determining that 3 it was second or successive. Sconce v. Covello, Case No. 2:20-cv-01846-ODW- 4 PD, Dkt. Nos. 22, 27, 28,

, at *10-*12,

Dist. LEXIS 26063, at *2. In moving to dismiss the petition voluntarily, 6 Petitioner stated he would seek authorization from the Ninth Circuit to file a 7 second or successive petition in this Court.

Dkt. No. 27 at 1. As of the 8 date of this order, Petitioner has not filed such a motion in the Ninth Circuit. 9 The instant Petition is also second or successive and is subject to 10 dismissal.2 Absent an order from the Ninth Circuit, Petitioner may not bring 11 another habeas corpus petition in this Court challenging the 1997 conviction 12 and sentence. See

(b)(3)(A); Burton v. Stewart,

, 13 157 (2007) (holding district court lacks jurisdiction to consider the merits of a 14 second or successive petition absent prior authorization from the circuit 15 court). For that reason, the Petition is dismissed without prejudice. 16 In addition, pursuant to Rule 11(a) of the Rules Governing Section 2254 17 Cases in the United States District Courts, the Court has considered whether 18 a certificate of appealability is warranted in this case. See 28 U.S.C. 19 § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell,

, 336 20 (2003); Slack v. McDaniel,

(2000). The Court concludes that 21 a certificate of appealability is unwarranted, and thus, a certificate of 22 appealability is denied. 23

24 1 The procedural history of Petitioner’s state criminal matter is detailed in the 2018 Report and Recommendation that was adopted by this Court. See Sconce, Case 25 No. 2:14-cv-2447-ODW-JC, Dkt. No. 78 at 3-20,

, at *2- 26 *25. 2 The Petition challenges the 1997 proceedings by raising a sole claim that the 27 state court misinterpreted the District Court’s 1997 order granting the writ of 28 habeas corpus when it sentenced Petitioner to lifetime probation. [Dkt. No. 4 at 7.] 1 IT IS FURTHER ORDERED that the Clerk of the Court shall refer the g | Petition to the Ninth Circuit pursuant to Ninth Circuit Rule 22—3(a). 3 IT IS SO ORDERED. 4 ~~ 5 Dated: August 11, 2021 LOLS 6 HON. OTISD.WRIGHTIT 7 UNITED STATES DISTRICT JUDGE 8 9 | Presented by: PR abiatia Mona hoe PATRICIA DONAHUE 12 | UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28