FINDINGS AND RECOMMENDATIONS

ALLISON CLAIRE, Magistrate Judge.

Petitioner is a state prisoner proceeding pro and in forma pauperis with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Presently before the court is respondent's motion to dismiss, ECF No. 21, filed August 19, 2015. Petitioner has opposed the motion. ECF No. 24.

I. Background

Petitioner was convicted in Solano County Superior Court of two counts of first degree murder and two counts of second degree robbery. On December 13, 1996, the trial court sentenced petitioner to state prison for two consecutive life terms without the possibility of parole. ECF No. 21-1 Exh. A at 5.

Petitioner appealed, and the California Court of Appeal for the First Appellate District affirmed the conviction on May 20, 1998. See Dkt. in Case No. A077037 (Cal. App. Div. 1). Petitioner also filed a petition for a writ of habeas corpus in the California Court of Appeal, which was also denied on May 20, 1998. See Dkt. in Case No. A080742 (Cal. App. Div. 1). On August 19, 1998, the California Supreme Court denied review of both the direct appeal and the habeas petition. See Dkt. in Case Nos. S071458 and S071556 (Cal.); ECF No. 21-1 Exh. A at 5.

On February 3, 2000, petitioner filed a second habeas petition in the California Supreme Court, which was denied on April 26, 2000. See Dkt. in Case No. S085614 (Cal.).

On April 13, 2001, petitioner filed a federal habeas petition in the United States District Court, Northern District of California, which was designated Case No. C 01-1470 MJJ. By order dated November 28, 2002, the district court found the federal petition untimely because it was filed outside the one-year statute of limitations, and granted respondent's motion to dismiss the petition as procedurally barred.1 See ECF No. 21-1 Exh. A at 5-7 (Order dismissing federal habeas petition in Moreland v. Lamarque, No. C01-1470-MJJ, 2002 U.S. Dist. LEXIS 24814 (N.D. Cal. Nov. 28, 2002)) (hereafter "NDCA Order"). On September 18, 2003, petitioner filed a request for a certificate of appealability, which the Ninth Circuit Court of Appeals denied on October 22, 2003. See ECF No. 21-1 Exh. B at 9-10 (copy of docket in Case No. 03-16726 (9th Cir.)).

On February 2, 2006, petitioner filed a third habeas petition in the California Supreme Court, which was denied on November 29, 2006. See Dkt. in Case No. S140919 (Cal.).

On June 21, 2007, petitioner filed an application in the Ninth Circuit Court of Appeals for leave to file a second or successive petition in federal court. The Ninth Circuit denied the application on August 2, 2007. See ECF No. 21-1 Exh. C at 12-13 (copy of docket in Case No. 07-72456 (9th Cir.)).

On June 27, 2014, petitioner filed a fourth habeas petition in the California Supreme Court, which was denied on September 10, 2014. See Dkt. in Case No. S219706 (Cal.); ECF No. 1-2 at 25 (Order of denial from California Supreme Court).

The instant federal petition, ECF No. 1, was constructively filed on December 28, 2014.2

II. Motion to Dismiss

Respondent moves for dismissal on the ground that petitioner's § 2254 petition is successive under 28 U.S.C. 2244(b)(2). ECF No. 21 at 1, 3. Specifically, respondent argues that because petitioner did not first obtain authorization from the Ninth Circuit Court of Appeals for leave to file a second or successive petition, the instant petition should be dismissed for lack of jurisdiction. Id. at 3.

Petitioner opposed the motion,3 arguing that the court may consider his successive petition on the merits because he has newly-discovered evidence to support his claims of actual innocence and ineffective assistance of counsel. See ECF No. 24 at 3-15. Specifically, petitioner contends that his trial counsel failed to investigate or have DNA testing conducted on a baseball cap found near the scene of the crime, which petitioner learned of for the first time when reading through trial counsel's case file in 2013.4 See id. at 21-24. Petitioner further contends that although petitioner informed counsel of three alibi witnesses willing to testify on petitioner's behalf, counsel failed to call any of those witnesses at trial. See id. at 17-20.

Respondent did not file a reply.

III. Successive Petition

28 U.S.C. § 2244(b)(3)(A) provides that a second or successive application for habeas relief may not be filed in district court without prior authorization by the court of appeals. See Felker v. Turpin, 518 U.S. 651, 656-657 (1996). Prior authorization is a jurisdictional requisite. Burton v. Stewart, 549 U.S. 147, 152 (2007); Cooper v. Calderon, 274 F.3d 1270, 1274 (9th Cir.2001) (once district court has recognized a petition as second or successive pursuant to § 2244(b), it lacks jurisdiction to consider the merits). The district court has discretion either to transfer a successive petition to the court of appeals or to dismiss the petition. United States v. Winestock, 340 F.3d 200 (4th Cir. 2003) (§ 2255 case); Robinson v. Johnson, 313 F.3d 128, 139-140 (3rd Cir. 2002).

A petition is successive within the meaning of 28 U.S.C. § 2244(b) where it "seeks to add a new ground for relief," or "if it attacks the federal court's previous resolution of a claim on the merits . . ." Gonzalez v. Crosby, 545 U.S. 524, 532 (2005) (emphasis in original). "[A] `claim' as used in § 2244(b) is an asserted federal basis for relief from a state court's judgment of conviction." Id. at 530. "A habeas petition is second or successive only if it raises claims that were or could have been adjudicated on the merits." McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir.2009) (citing Woods v. Carey, 525 F.3d 886, 888 (9th Cir.2008)).

Petitioner previously challenged his conviction and sentence in Moreland v. Lamarque, Case No. C 01-1470 MJJ, which was denied on the merits on November 28, 2002.5 This court takes judicial notice of the record in that proceeding. See Valerio v. Boise Cascade Corp., 80 F.R.D. 626, 635 n. 1 (N.D. Cal. 1978), aff'd, 645 F.2d 699 (9th Cir.), cert. denied, 454 U.S. 1126 (1981) (judicial notice may be taken of court records). Respondent has also indicated that petitioner's request for leave to file a second or successive petition in federal court, filed June 21, 2007, was denied by the Ninth Circuit Court of Appeals on August 2, 2007. See ECF No. 21 at 3; ECF No. 21-1 Exh. C at 12-13 (copy of docket in Case No. 07-72456 (9th Cir.)). There is no indication that petitioner sought further leave from the Ninth Circuit Court of Appeals to file a second or successive petition.

Respondent contends that the instant petition is successive because petitioner already challenged this same sentence and conviction in a prior federal habeas petition, which was dismissed as untimely. ECF No. 21 at 1. Respondent is correct. Because the prior petition was denied on the merits, 28 U.S.C. § 2244(b)(3) applies. McNabb, 576 F.3d at 1029. Because petitioner has "brought claims contesting the same custody imposed by the same judgment of a state court" without first having obtained the requisite authorization from the Court of Appeals, Burton v. Stewart, 549 U.S. at 153, this court cannot entertain the petition. Should petitioner seek to proceed on the merits, he must seek authorization from the Ninth Circuit Court of Appeals to do so.

IV. Summary

Even though petitioner claims to make a credible showing of actual innocence, this court cannot consider his federal habeas petition unless petitioner first gets permission from the Ninth Circuit Court of Appeals for leave to file a second or successive petition. Because petitioner did not get permission from the Ninth Circuit to file a second or successive petition, this court cannot consider his petition.

Petitioner may re-file his federal petition after he obtains permission from the Ninth Circuit Court of Appeals. If he obtains permission, petitioner should re-file his federal petition with a copy of the order from the Ninth Circuit authorizing him to file a second or successive petition.

V. Conclusion

In accordance with above, IT IS HEREBY RECOMMENDED that:

These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).