ORDER DISMISSING SUCCESSIVE HABEAS ACTION

STEPHEN V. WILSON, District Judge.

The Court summarily dismisses this action pursuant to the successive habeas petition rule under 28 U.S.C. §§ 2243 and 2244.

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1. Petitioner is a state prisoner. He is serving a ten-year sentence based on his no contest plea to sex offense charges.

2. Petitioner previously sought habeas relief in this Court regarding that conviction. Robledo v. Gipson, No. CV 12-9622 SVW (MRW) (C.D. Cal.). The Court denied the earlier habeas petition as Tollett-barred under federal law. Tollett v. Henderson, 411 U.S. 258 (1973) (defendant who pleads guilty or nolo contendere "typically "may not thereafter raise independent claims relating to the deprivation of constitutional rights" on habeas review"). The Court notes that, after Petitioner initiated that case, it appointed the Federal Public Defender to represent Petitioner due to his documented mental health issues. (Docket # 28.)

3. The United States Court of Appeals for the Ninth Circuit declined to issue a certificate of appealability following the termination of the previous action. (Docket # 89.)

4. Petitioner's current habeas case seeks further review of the same conviction. The petition was not accompanied by a certificate from the Ninth Circuit authorizing a successive habeas action pursuant to 28 U.S.C. § 2244(b).

5. The Court (Magistrate Judge Wilner) issued an order noting the successive nature of the current habeas action. (Docket # 4.) The Court directed Petitioner to submit a statement addressing why the action should not be dismissed as a matter of federal law.

6. Petitioner subsequently filed a statement that failed to address the successive-petition issue. (Docket # 6.) Rather, Petitioner emphasized his desire to pursue his "actual innocence" claim. He further contended that his appointed attorney "failed and refused to present" that claim in the earlier action. (Id. at 4.) He explains that, because he is now being assisted by another inmate, he is entitled to his "one-time bite at the apple" regarding his claim of factual innocence. (Id. at 2, 4-5.) Notably, Petitioner did not present any newly-discovered evidence (either with his original petition or his supplemental submission) to support his actual innocence claim.

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7. If it "appears from the application that the applicant or person detained is not entitled" to habeas relief, a court may dismiss a habeas action without ordering service on the responding party. 28 U.S.C. § 2243; see also Rule 4 of Rules Governing Section 2254 Cases in United States District Courts (petition may be summarily dismissed if petitioner plainly not entitled to relief); Local Civil Rule 72-3.2 (magistrate judge may submit proposed order for summary dismissal to district judge "if it plainly appears from the face of the petition [ ] that the petitioner is not entitled to relief").

8. Under federal law, a state prisoner is generally required to present all constitutional challenges to a state conviction in a single federal action. "Before a second or successive [habeas petition] is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S.C. § 2244(b)(3)(A).

9. A prisoner must obtain authorization from the Court of Appeals to pursue such a successive habeas petition before the new petition may be filed in district court. Id.; Burton v. Stewart, 549 U.S. 147, 156 (2007) (district court without jurisdiction to consider successive habeas action when prisoner "neither sought nor received authorization from the Court of Appeals before filing").

10. "If the petition is second or successive, then the district court lacks jurisdiction and must dismiss the petition unless and until the court of appeals grants an application to file it." Brown v. Muniz, 889 F.3d 661, 667, 676 (9th Cir. 2018) ("petitioner's burden is higher" under statute to bring successive habeas action). Claims for which "the factual predicate existed at the time of the first habeas petition [ ] qualify as second or successive" under AEDPA. Gage v. Chappell, 793 F.3d 1159, 1165 (9th Cir. 2015).

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11. The current petition challenges the same conviction that was the subject of Petitioner's previous habeas action. Petitioner claims that his appointed lawyer failed to bring an actual innocence claim in his earlier action. (Docket # 6 at 2.) However, Petitioner does not contend that the factual predicate of his new claim of actual innocence was unavailable to him during the previous action.

12. That makes the current action successive. Gage, 793 F.3d at 1165. Petitioner has not asked for or received permission from the Ninth Circuit Court of Appeals to pursue a successive action. On this basis, the current petition is subject to summary dismissal. 28 U.S.C. § 2244(b); Brown, 889 F.3d at 667, 676. Moreover, Petitioner's bare assertion of actual innocence is insufficient to avoid operation of the successive action rule under the statute or in light of binding appellate court precedent.

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Because the Court does not have jurisdiction to consider Petitioner's claim, the action is DISMISSED without prejudice as successive.

IT IS SO ORDERED.