Filed: Mar. 01, 2017
Latest Update: Mar. 01, 2017
Summary: MEMORANDUM AND ORDER DISMISSING PETITION JOHN F. WALTER , District Judge . In 1984, petitioner pleaded guilty to two counts of first degree murder and three counts of assault with a deadly weapon. In addition, petitioner admitted the special circumstance allegations. Petitioner was sentenced to state prison for a term of life without the possibility of parole. [Petition at 2]. On October 4, 1991, petitioner filed a petition for a writ of habeas corpus in this Court challenging his 1984 con
Summary: MEMORANDUM AND ORDER DISMISSING PETITION JOHN F. WALTER , District Judge . In 1984, petitioner pleaded guilty to two counts of first degree murder and three counts of assault with a deadly weapon. In addition, petitioner admitted the special circumstance allegations. Petitioner was sentenced to state prison for a term of life without the possibility of parole. [Petition at 2]. On October 4, 1991, petitioner filed a petition for a writ of habeas corpus in this Court challenging his 1984 conv..
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MEMORANDUM AND ORDER DISMISSING PETITION
JOHN F. WALTER, District Judge.
In 1984, petitioner pleaded guilty to two counts of first degree murder and three counts of assault with a deadly weapon. In addition, petitioner admitted the special circumstance allegations. Petitioner was sentenced to state prison for a term of life without the possibility of parole. [Petition at 2].
On October 4, 1991, petitioner filed a petition for a writ of habeas corpus in this Court challenging his 1984 conviction. Case No. CV 91-539-RMT(EE). The petition alleged that petitioner's guilty plea was involuntary because it was a result of ineffective assistance of counsel. After two evidentiary hearings, the petition was denied on the merits. Petitioner appealed, and the Ninth Circuit affirmed the judgment. Stewart v. Borg, 69 F.3d 544 (9th Cir. 1995) (unpublished disposition).
On February 28, 2001, petitioner filed a request for leave to file a second or successive petition in the Ninth Circuit Court of Appeals. Case No. 01-70318. The request was denied on April 16, 2001. [Lodged Document No. 6].
Petitioner filed the current petition for a writ of habeas corpus on October 3, 2016.1 The petition raises three claims for relief: (1) "Under the Fourteenth Amendment of the U.S. Constitution Equal Protection & Due Process Clauses by not following California Penal Code 1385 dealing with special circumstances"; (2) the California Court of Appeal failed to "follow established law concerning special circumstances allegations after a defendant has successfully completed an extensive rehab [sic] prior"; (3) the California Supreme Court failed to follow established law in denying petitioner's habeas corpus petition because it failed to take into account that petitioner "sought consideration to strike special circumstances." [Petition at 5-6]. Based upon petitioner's allegations, it appears that the petition challenges petitioner's conviction of the special circumstance allegation.2
"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." 28 U.S.C. § 2244(b)(3)(A). Absent authorization from the Court of Appeals, this Court lacks jurisdiction over a successive petition. See Magwood v. Patterson, 561 U.S. 320, 330-331 (2010); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir. 2001), cert. denied, 538 U.S. 984 (2003).
Because petitioner has not obtained leave from the Court of Appeals to file a successive petition, the petition is dismissed for lack of jurisdiction.3
It is so ordered.
