Case 2:22-cv-01402-DSF-KES Document 4 Filed 03/07/22 Page 1 of 4 Page ID #:84

1 2 O 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 TRACY L. STEWART, Case No. 2:22-cv-01402-DSF-KES 12 Petitioner, ORDER DISMISSING HABEAS 13 v. PETITION AS SUCCESSIVE 14 KATHLEEN ALLISON, Secretary, et al., 15 Respondent. 16

17 I. 18 BACKGROUND 19 In July 2019, Petitioner Tracy L. Stewart (“Petitioner”) filed a Petition for 20 Writ of Habeas Corpus by a Person in State Custody pursuant to

. 21 (Stewart v. Johnson, Central District of California case no. 2:19-cv-06400-KES 22 [“Stewart III”], Dkt. 1.) The Petition challenged Petitioner’s 1986 convictions for 23 multiple counts of kidnapping and robbery. (Id., p. 2.) 24 The Court ordered Respondent to respond to the Petition. (Id. at Dkt. 4 25 [“Order Requiring Response”].) The Order Requiring Response noted that while 26 Petitioner had filed a previous federal habeas petition in 2014, it was unclear 27 whether the Stewart III Petition was successive, because the California Court of 28 1 Case 2:22-cv-01402-DSF-KES Document 4 Filed 03/07/22 Page 2 of 4 Page ID #:85

1 Appeal had ordered modifications to Petitioner’s sentence that might have resulted 2 in a new judgment. (Id. at Dkt. 19-2, Lodged Document [“LD”] 2.) 3 Respondent moved to vacate the Order Requiring Response, arguing that the 4 Stewart III Petition was successive because Petitioner had filed a prior federal 5 petition in Stewart v. State of California, case no. 90-cv-2337-IH-K, denied on the 6 merits (“Stewart I”). (See Stewart III at Dkt. 18; see also LD 6.) In supplemental 7 briefing, Respondent noted that Petitioner had filed a second federal habeas petition 8 in Stewart v. McComber, case no. 2:14-cv-01747-DSF-DFM, which was dismissed 9 as untimely (Stewart II”). Respondent also explained that while the California 10 Court of Appeal modified Petitioner’s judgment in 1986, it did not remand the case 11 for re-sentencing, and therefore no new judgment was entered after 1986. (Stewart 12 III at Dkt. 25, pp. 6-7, citing LD 2, p 18.) As a result, both of Petitioner’s prior 13 federal petitions challenged the same judgment as his Petition in Stewart III. The 14 Court dismissed the Stewart III Petition without prejudice as successive. (Id. at 15 Dkt. 28.) 16 II. 17 THE NEWEST FEDERAL HABEAS PETITION 18 In February 2022, the Court received from Petitioner a fourth Petition for 19 Writ of Habeas Corpus by a Person in State Custody pursuant to

20 filed in the above-captioned case. (Dkt. 1 [“Stewart IV”].) This Petition, too, 21 challenges Petitioner’s 1986 convictions. (Id., p. 2.) 22 III. 23 DISCUSSION 24 The Stewart IV Petition is governed by

(b), which provides 25 in relevant part as follows: 26 (b)(1) A claim presented in a second or successive habeas corpus 27 application under section 2254 that was presented in a prior 28 application shall be dismissed. 2 Case 2:22-cv-01402-DSF-KES Document 4 Filed 03/07/22 Page 3 of 4 Page ID #:86

1 (2) A claim presented in a second or successive habeas corpus 2 application under section 2254 that was not presented in a prior 3 application shall be dismissed unless-- 4 (A) the applicant shows that the claim relies on a new rule of 5 constitutional law, made retroactive to cases on collateral review by 6 the Supreme Court, that was previously unavailable; or 7 (B)(i) the factual predicate for the claim could not have been 8 discovered previously through the exercise of due diligence; and 9 (ii) the facts underlying the claim, if proven and viewed in light 10 of the evidence as a whole, would be sufficient to establish by clear 11 and convincing evidence that, but for constitutional error, no 12 reasonable factfinder would have found the applicant guilty of the 13 underlying offense. 14 (3)(A) Before a second or successive application permitted by this 15 section is filed in the district court, the applicant shall move in the 16 appropriate court of appeals for an order authorizing the district 17 court to consider the application. 18

(b) (emphasis added). 19 It is apparent from the face of the Petition that it attacks the same convictions 20 and sentence as challenged in the Stewart I, II, and III federal petitions. Thus, it 21 was incumbent on Petitioner under § 2244(b)(3)(A) to secure an order from the 22 Ninth Circuit authorizing this Court to consider the Petition before filing it in this 23 Court. Petitioner’s failure to do so deprives the Court of subject matter jurisdiction 24 to consider the Petition. See Cooper v. Calderon,

(9th Cir. 25 2001). Because the Petition is successive, the Court will dismiss the Petition 26 without prejudice to the filing of a new action if and when Petitioner obtains 27 permission to file a successive petition. 28 / / / 3 Case 2:22-cv-01402-DSF-KES Document 4 Filed 03/07/22 Page4of4 Page ID #:87

1 IT IS THEREFORE ORDERED that the Petition is DISMISSED without 2 | prejudice as successive pursuant to

(b). 4 | DATED: March 7, 2022 i} ) 5 Honorable Dale Fischer’ 6 UNITED STATES DISTRICT JUDGE

Presented by: | Sats 10 | KAREN E. SCOTT 1] | UNITED STATES MAGISTRATE JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28