1 JS-6 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 ) 12 CLARENCE LEONARD HEARNS, ) Case No. CV 21-6323-VAP (JEM) ) 13 Petitioner, ) ) ORDER SUMMARILY DISMISSING 14 v. ) PETITION FOR LACK OF JURISDICTION ) AND DENYING A CERTIFICATE OF 15 KATHLEEN ALLISON, ) APPEALABILITY ) 16 Respondent. ) ) 17 18 On August 4, 2021, Clarence Leonard Hearns (“Petitioner”) filed a petition for writ of 19 habeas corpus by a person in state custody pursuant to

(“Petition” or “Pet.”). 20 Petitioner challenges his 1996 conviction and sentence in Los Angeles County Superior Court 21 Case No. BA085786-01 (“1996 Conviction”). (Pet. at 1.)1 22 PRIOR PROCEEDINGS 23 Pursuant to Fed. R. Evid. 201, the Court takes judicial notice of the records in 24 Petitioner’s prior federal habeas corpus actions in this Court, Clarence Leonard Hearns, Jr. v. 25 Cal Trahune, Case No. CV 00-2044-PSG (JEM) (“2000 Habeas Action), and Clarence Leonard 26 Hearns, Jr. v. K. Harrington, Case No. CV 09-4030-FMC (OP) (“2009 Habeas Action”). See 27 28 1 United States v. Wilson,

(9th Cir. 1980) (“In particular, a court may take 2 judicial notice of its own records in other cases, as well as the records of an inferior court in 3 other cases.”) (citations omitted); accord United States v. Howard,

, 876 n.1 (9th 4 Cir. 2004). 5 In the 2000 and 2009 Habeas Actions, Petitioner challenged his 1996 Conviction.2 6 (2000 Habeas Action, ECF 35 at 2; 2009 Habeas Action, ECF 10 at 2.) The 2000 Habeas 7 Action was dismissed with prejudice as untimely on May 13, 2002. (2000 Habeas Action, ECF 8 40 at 1.) The 2009 Habeas Action was dismissed with prejudice as untimely on January 12, 9 2010. (2009 Habeas Action, ECF 15 at 2, ECF 16.) The instant Petition, filed August 4, 2021, 10 also challenges the 1996 Conviction. (Pet. at 1.) 11 DISCUSSION 12 I. DUTY TO SCREEN 13 This Court has a duty to screen habeas corpus petitions. See Rules Governing § 2254 14 Cases in the United States District Courts, Rule 4 Advisory Committee Notes. Rule 4 requires 15 a district court to examine a habeas corpus petition, and if it plainly appears from the face of 16 the petition and any annexed exhibits that the petitioner is not entitled to relief, the judge shall 17 make an order for summary dismissal of the petition. Id.; see also Local Rule 72-3.2. The 18 notes to Rule 4 state: “‘a dismissal may be called for on procedural grounds, which may avoid 19 burdening the respondent with the necessity of filing an answer on the substantive merits of 20 the petition.’” See Boyd v. Thompson,

(9th Cir. 1998); White v. Lewis, 21

(9th Cir. 1989). 22 /// 23 /// 24 /// 25 26 2 It appears that Petitioner filed his first federal habeas petition in 1996, in the matter of Clarence Leonard Hearns, Jr. v. Galaza, CV 96-6026-GHK (Mc) (“1996 Habeas Action”), which 27 was dismissed without prejudice as unexhausted on September 10, 1996. (1996 Habeas Action, 28 Dkt. 4.) Because the 2000 and 2009 Habeas Actions were dismissed with prejudice as untimely, 1 II. THE PETITION IS SUBJECT TO SUMMARY DISMISSAL AS AN UNAUTHORIZED 2 SECOND OR SUCCESSIVE PETITION 3 The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) provides, in 4 pertinent part: 5 (b)(1) A claim presented in a second or successive habeas corpus 6 application under section 2254 that was presented in a prior application 7 shall be dismissed. 8 (2) A claim presented in a second or successive habeas corpus 9 application under section 2254 that was not presented in a prior 10 application shall be dismissed unless – 11 (A) the applicant shows that the claim relies on a new rule of 12 constitutional law, made retroactive to cases on collateral review by 13 the Supreme Court, that was previously unavailable; or 14 (B)(i) the factual predicate for the claim could not have been 15 discovered previously through the exercise of due diligence; and [¶] 16 (ii) the facts underlying the claim, if proven and viewed in light of 17 the evidence as a whole, would be sufficient to establish by clear 18 and convincing evidence that, but for constitutional error, no 19 reasonable factfinder would have found the applicant guilty of the 20 underlying offense. 21 (3)(A) Before a second or successive application permitted by this 22 section is filed in the district court, the applicant shall move in the 23 appropriate court of appeals for an order authorizing the district court to 24 consider the application. 25

(b)(1)-(3)(A); see also Rule 9 of the Rules Governing § 2254 Cases in the 26 United States District Courts. 27 A district court does not have jurisdiction to consider a second or successive petition 28 1 (per curiam); see also Cooper v. Calderon,

(9th Cir. 2001) (per curiam) 2 (“When the AEDPA is in play, the district court may not, in the absence of proper authorization 3 from the court of appeals, consider a second or successive habeas application.”) (citation and 4 quotation marks omitted). 5 The instant Petition is a second or successive petition challenging the same conviction 6 at issue in the 2000 and 2009 Habeas Actions, which were dismissed with prejudice as 7 untimely. See McNabb, 576 F.3d at 1029. There is no indication in the record that Petitioner 8 has obtained permission from the Ninth Circuit Court of Appeals to file a second or successive 9 petition.3 This Court, therefore, lacks jurisdiction over the Petition under

2244(b)(3). See Burton, 549 U.S. at 152. 11 Accordingly, the Court will dismiss the Petition without prejudice to Petitioner filing a 12 new action if he obtains permission from the Ninth Circuit to file a second or successive 13 petition.4 14 /// 15 /// 16 /// 17 /// 18 19 3 Ninth Circuit Rule 22-3(a) provides that “if an application for authorization to file a second or 20 successive section 2254 petition . . . is mistakenly submitted to the district court, the district court shall refer it to the court of appeals.” Rule 22-3(a) also permits the district court to refer a second 21 or successive 2254 petition to the Ninth Circuit in the interests of justice. In this case, there is no indication that the instant Petition is actually an application for authorization to file a second or 22 successive petition that was mistakenly filed here, and the Court declines to construe it as such. The Court also does not find that it is in the interests of justice to refer the Petition to the Ninth 23 Circuit under Rule 22-3(a) because Petitioner has previously filed three other federal habeas 24 petitions pertaining to his 1996 Conviction. Two of those habeas petitions were dismissed with prejudice as untimely in 2002 and 2010. If Petitioner seeks authorization to file a successive 25 habeas petition, he should submit his application directly to the Ninth Circuit Court of Appeals in compliance with Ninth Circuit Rule 22-3. 26 4 If Petitioner obtains permission to file a second petition, he should file a new petition for writ 27 of habeas corpus. He should not file an amended petition in this action or use the case number 28 from this action because the instant action is being closed today. When Petitioner files a new 1 CERTIFICATE OF APPEALABILITY 2 Pursuant to Rule 11 of the Rules Governing Section 2254 cases, the Court “must issue 3]| or deny a certificate of appealability when it enters a final order adverse to the applicant.” 4 The Court has found that the Petition should be dismissed without prejudice as an unauthorized second or successive petition. For the reasons stated above, the Court 6|| concludes that Petitioner has not made a substantial showing of the denial of a constitutional right, as is required to support the issuance of a certificate of appealability. See

(c)(2). 9 ORDER 10 IT IS HEREBY ORDERED that: (1) the Petition is dismissed without prejudice; and (2) a certificate of appealability is denied. 12 . 13 | DATED: August 31, 2021 nm Phe

14 UNITED STATES DISTRICT. JUBGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28