Filed: May 07, 2019
Latest Update: May 07, 2019
Summary: ORDER GRANTING MOTION TO DISMISS; DENYING MOTION TO STAY Re: Dkt. Nos. 8, 9 VINCE CHHABRIA , District Judge . Joshua S. Herrera filed this pro se petition for a writ of habeas pursuant to 28 U.S.C. 2254. On January 28, 2019, the respondent filed a motion to dismiss the petition as a second or successive petition under 28 U.S.C. 2244, arguing Herrera previously filed a federal habeas petition challenging the same convictions he challenges in this petition. On March 6, 2013, Herrera fil
Summary: ORDER GRANTING MOTION TO DISMISS; DENYING MOTION TO STAY Re: Dkt. Nos. 8, 9 VINCE CHHABRIA , District Judge . Joshua S. Herrera filed this pro se petition for a writ of habeas pursuant to 28 U.S.C. 2254. On January 28, 2019, the respondent filed a motion to dismiss the petition as a second or successive petition under 28 U.S.C. 2244, arguing Herrera previously filed a federal habeas petition challenging the same convictions he challenges in this petition. On March 6, 2013, Herrera file..
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ORDER GRANTING MOTION TO DISMISS; DENYING MOTION TO STAY
Re: Dkt. Nos. 8, 9
VINCE CHHABRIA, District Judge.
Joshua S. Herrera filed this pro se petition for a writ of habeas pursuant to 28 U.S.C. § 2254. On January 28, 2019, the respondent filed a motion to dismiss the petition as a second or successive petition under 28 U.S.C. § 2244, arguing Herrera previously filed a federal habeas petition challenging the same convictions he challenges in this petition.
On March 6, 2013, Herrera filed a federal habeas petition challenging his convictions in the Santa Clara County Superior Court, Case Number CC-313775, for home invasion robbery, burglary, and assault with a deadly weapon, with gang and gun enhancements. See Herrera v. Grounds, C 13-1016 LHK (PR), ECF No. 1. The Court granted the respondent's motion to dismiss the petition as untimely and entered judgment. Id., ECF Nos. 17, 18. The Ninth Circuit denied Herrera's request for a certificate of appealability and the Supreme Court denied his petition for a writ of certiorari. Id., ECF Nos. 25, 27.
In this petition, Herrera also challenges his convictions in the Santa Clara County Superior Court, Case Number CC-313775. ECF No. 1 at 1,3.
28 U.S.C. §§ 2244(b)(A) and (C) state:
(b)(3)(A) Before a second or successive application permitted by this section 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.
(b)(3)(C) The court of appeals may authorize the filing of a second or successive application only if it determines that the application makes a prima facie showing that the application satisfies the requirements of this subsection.
Because the dismissal of the first habeas petition for untimeliness is a disposition on the merits, Herrera's further petition is a second or successive petition for purposes of 28 U.S.C. § 2244(b). See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009).
In his opposition, Herrera acknowledges that this is a successive petition, but moves to stay this petition while he obtains authorization from the Ninth Circuit to file his petition in this Court. However, this Court lacks jurisdiction over this successive petition. See Burton v. Stewart, 549 U.S. 147, 153 (2007) (without authorization from Court of Appeals to file successive petition, district court is without jurisdiction over it). Therefore, Herrera's motion for a stay is denied and the motion to dismiss is granted. This petition is dismissed without prejudice.
The Clerk shall terminate all pending motions, issue a separate judgment and close the case.
IT IS SO ORDERED.
