1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ROBERT WAYNE THOMPSON, No. 2:24-cv-1166 AC P 12 Petitioner, 13 v. ORDER AND FINDINGS AND RECOMMENDATIONS 14 PEOPLE OF THE STATE OF CALIFORNIA, 15 Respondent. 16 17 18 Petitioner, a state prisoner proceeding pro se, has filed an application for a writ of habeas 19 corpus pursuant to

. 20 In the instant petition, petitioner challenges his 2012 conviction on multiple charges, 21 which resulted in a thirty-year sentence. ECF No. 1 at 1-2. 22 Under

(b)(3)(A), a second or successive application for habeas relief 23 may not be filed in district court without prior authorization by the court of appeals. Felker v. 24 Turpin,

(1996). Prior authorization is a jurisdictional requisite. Burton v.

U.S. 147, 152-53 (2007); Cooper v. Calderon,

(9th Cir. 2001) 26 (once district court has recognized a petition as second or successive pursuant to § 2244(b), it 27 lacks jurisdiction to consider the merits). A petition is successive within the meaning of 28

(b) where it “seeks to add a new ground for relief” or “if it attacks the federal 1 court’s previous resolution of a claim on the merits.” Gonzalez v. Crosby,

, 532 2 (2005) (emphasis in original). “[A] ‘claim’ as used in § 2244(b) is an asserted federal basis for 3 relief from a state court’s judgment of conviction.” Id. at 530. “Even if a petitioner can 4 demonstrate that he qualifies for one of [the] exceptions [to filing a second or successive 5 petition], he must seek authorization from the court of appeals before filing his new petition with 6 the district court.” Woods v. Carey,

(9th Cir. 2008) (citing 28 U.S.C. 7 § 2244(b)(3)). 8 The court’s records reflect that petitioner has previously filed an application for a writ of 9 habeas corpus attacking the conviction and sentence that is challenged in this case. The previous 10 application was filed by the Clerk of the Court on October 28, 2015, and was denied as untimely 11 on October 3, 2017. Thompson v. State of California, No. 2:15-cv-2236 TLN CMK (E.D. Cal.), 12 ECF Nos. 1, 17, 19. This court takes judicial notice of the record in that proceeding. United 13 States v. Wilson,

(9th Cir. 1980) (“[A] court may take judicial notice of its 14 own records in other cases.”). The Ninth Circuit has held “that the dismissal of a habeas petition 15 as untimely constitutes a disposition on the merits and that a further petition challenging the same 16 conviction would be ‘second or successive’ for purposes of

(b).” McNabb v.

F.3d 1028, 1029 (9th Cir. 2009). 18 Because the petition is second or successive, before petitioner can proceed on his claims, 19 he must submit a request to the United States Court of Appeals for the Ninth Circuit to issue an 20 order authorizing the district court to consider the application and that request must be granted. 21

(b)(3). Petitioner has not provided any evidence that he has received the 22 required authorization. The undersigned will therefore recommend that this action be dismissed 23 without prejudice to re-filing once petitioner receives authorization to proceed from the Ninth 24 Circuit. 25 Accordingly, IT IS HEREBY ORDERED that the Clerk of the Court randomly assign a 26 United States District Judge to this action. 27 IT IS FURTHER RECOMMENDED that this action be dismissed without prejudice as 28 second or successive. ] These findings and recommendations are submitted to the United States District Judge 2 || assigned to the case, pursuant to the provisions of

(b)(1).. Within twenty-one days 3 || after being served with these findings and recommendations, petitioner may file written 4 || objections with the court. The document should be captioned “Objections to Magistrate Judge’s 5 || Findings and Recommendations.” If petitioner files objections, he shall also address whether a 6 || certificate of appealability should issue and, if so, why and as to which issues. See 28 U.S.C. 7 || § 2253(c)(2). Petitioner is advised that failure to file objections within the specified time may 8 | waive the right to appeal the District Court’s order. Martinez v. YIst,

(9th Cir. 9 | 1991). 10 | DATED: April 22, 2024 ~

12 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28