1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10 RALPH CHARLES OJEDA, 11 Case No. 20-07317 EJD (PR) Petitioner, 12 ORDER GRANTING MOTION TO v. DISMISS; DENYING 13 CERTIFICATE OF APPEALABILITY 14 JEFF LYNCH, Warden,

15 Respondent. (Docket No. 5) 16

17 18 Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas 19 corpus pursuant to

, challenging his state conviction. After an initial 20 review, the Court requested the Respondent to file a motion to dismiss the petition as 21 untimely or notice that such a motion is unwarranted. Dkt. No. 4. In lieu of such a 22 motion, Respondent filed a motion to dismiss the petition as second or successive, and 23 without an order from the Court of Appeals for the Ninth Circuit authorizing its filing. 24 Dkt. No. 5. Petitioner filed an opposition, Dkt. No. 10, and Respondent filed a reply, Dkt. 25 No. 11. For the reasons set forth below, the motion to dismiss is GRANTED. 26 /// 27 /// 1 I. BACKGROUND 2 In 2011, Petitioner was found guilty by a jury in Santa Clara County Superior Court 3 of first degree murder and the personal and intentional use of a firearm, (Cal. Penal Code 4 §§ 187, 12022.53(b)-(c)). Dkt. No. 5 at 2, 5, 13. On October 20, 2011, Petitioner admitted 5 that he had a prior strike conviction. Id. at 20. Petitioner was sentenced to 75 years to life 6 in state prison. Id. at 13. 7 On September 4, 2013, the California Court of Appeal affirmed the judgment in an 8 unpublished opinion and denied a habeas petition considered with the appeal. Dkt. No. 5 9 at 5-18. The California Supreme Court denied review of both the direct appeal and the 10 habeas petition on November 26, 2013. Dkt. No. 5 at 22, 24. 11 On January 9, 2015, Petitioner filed a petition for writ of habeas corpus in this 12 Court.1 Ojecda v. Muniz, N.D. Cal. Case No. 15-0117 EJD; Dkt. No. 1. On May 10, 13 2016, the Court denied the petition, denied a certificate of appealability (“COA”), and 14 entered judgment. Id., Dkt. Nos. 15, 16. On January 30, 2017, the Ninth Circuit denied a 15 request for a COA. Ojeda v. Muniz, Ninth Circuit Case No. 16-16061, Dkt. No. 3. 16 On October 19, 2020, Petitioner filed the instant federal habeas petition, challenging 17 the same 2011 judgment that was the subject of his 2015 federal petition. Dkt. No. 1. 18 19 II. DISCUSSION 20 A. Motion to Dismiss 21 “A claim presented in a second or successive habeas corpus application under 22 section 2254 that was presented in a prior application shall be dismissed.”

24 1 A district court “may take notice of proceedings in other courts, both within and without 25 the federal judicial system, if those proceedings have a direct relation to matters at issue.” Bias v. Moynihan,

(9th Cir. 2007) (internal quotation marks and 26 citations omitted) (granting request to take judicial notice in § 1983 action of five prior 1 2244(b)(1). “A claim presented in a second or successive habeas corpus application under 2 section 2254 that was not presented in a prior application shall be dismissed” unless,

3 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral 4 review by the Supreme Court, that was previously unavailable; or 5 (B) (i) the factual predicate for the claim could not have 6 been discovered previously through the exercise of due diligence; and 7 (ii) the facts underlying the claim, if proven and viewed 8 in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for 9 constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 10

(b)(2). 11 “Before a second or successive application permitted by this section is filed in the 12 district court, the applicant shall move in the appropriate court of appeals for an order 13 authorizing the district court to consider the application.”

(b)(3)(A). The 14 district court is “without power” to entertain a second or successive petition unless the 15 petitioner first receives authorization from the court of appeals. Chades v. Hill,

1055, 1056-57 (9th Cir. 2020). 17 Respondent argues that the instant habeas petition is second or successive because 18 Petitioner filed at least one prior habeas petition in this district which challenged the same 19 state conviction out of Santa Clara County. Dkt. No. 5 at 3. Furthermore, Respondent 20 asserts that Petitioner has not applied for or received authorization from the Ninth Circuit 21 to file the present second or successive petition under § 2244(b)(3)(A) and (B). Id. 22 In opposition, Petitioner does not refute the fact that the instant petition is second or 23 successive. Rather, he asserts that a “failure to resolve the constitutional violations will 24 result in a fundamental miscarriage of justice. Dkt. No. 10 at 1. Petitioner asserts that he 25 is an “‘actually innocent’ person who was wrongfully convicted of a crime he did not 26 commit.” Id. at 1-2. He contends that he can overcome procedural default based on the 1 showing of actual innocence. Id. at 2-4, citing McQuiggen v. Perkins,

(2013). 3 Respondent asserts in reply that Petitioner’s reliance on McQuiggen is unwarranted 4 because the Supreme Court held in that case that proven actual innocence may provide a 5 gateway for a federal court to hear an untimely federal petition. Dkt. No. 11 at 2. 6 Respondent contends that since the present petition is second or successive (in addition to 7 being untimely), the statutory restriction on second or successive petitions applies.

8 Respondent is correct. Even if Petitioner’s claim of actual innocence were 9 meritorious, he is still required to obtain an order from the Ninth Circuit Court of Appeals 10 authorizing this Court to consider a challenge to his state conviction based on a new claim. 11 See

(b)(3)(A). The instant petition is clearly a second or successive 12 petition under

(b). Therefore, Petitioner must first seek and obtain 13 authorization from the Ninth Circuit before this Court can consider his second or 14 successive petition. The Court can do nothing without such authorization. See Chades, 15 976 F.3d at 1056-57. 16 17 III. CONCLUSION 18 For the foregoing reasons, Respondent’s motion to dismiss the petition, Dkt. No. 5, 19 is GRANTED. The instant petition for a writ of habeas corpus is DISMISSED as second 20 or successive under

(a) and (b). 21 No certificate of appealability is warranted in this case. See Rule 11(a) of the Rules 22 Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on 23 certificate of appealability in same order that denies petition). Petitioner has not shown 24 “that jurists of reason would find it debatable whether the petition states a valid claim of 25 the denial of a constitutional right and that jurists of reason would find it debatable 26 whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529 1 This order terminates Docket No. 5. 2 IT IS SO ORDERED. 3 || Dated: __ 11/24/2021 ete" 4 EDWARD J. DAVILA United States District Judge 5 6 7 8 9 10 11 12

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2 18 19 20 21 22 23 24 25 Order Granting MTD; Denying COA PRO-SE\EJD\HC.20\0731 70jeda_grant-mtd(sec&succ) 26 27