Case 2:09 Cv 07943 Jfw Cw

Case 2:09-cv-07943-JFW-CW

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Filed 11/05/2009

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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RICHARD I. FINE,

) ) Petitioner, ) ) v. ) ) U.S. DISTRICT COURT, et al., ) ) Respondents, ) ______________________________)

No. CV 09-7943-JFW(CW) ORDER DISMISSING PETITION FOR WRIT OF HABEAS CORPUS

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For reasons stated below, this petition is summarily dismissed.

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BACKGROUND The pro se petitioner, Richard I. Fine, is in the custody of the

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Sheriff of Los Angeles County under a contempt judgment issued March

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4, 2009, by the California Superior Court, Los Angeles County, in Case

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No. BS109420.

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in a petition for writ of habeas corpus, under 28 U.S.C. § 2254, in

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this court, in Case No. CV 09-1914-JFW(CW).

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denied and dismissed with prejudice in a judgment entered June 29,

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2009.

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States Court of Appeals for the Ninth Circuit in Case No. 09-56073.

Petitioner previously sought to challenge that custody

That prior petition was

Petitioner’s appeal of that denial is pending before the United

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The present petition is simply an attempt to re-argue issues

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Petitioner raised in his prior petition.

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Petitioner lists this district court as a respondent in the present

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petition, he is not in the custody of this court.

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this court has simply declined to order him released from the custody

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of the Sheriff of Los Angeles County.

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On the contrary,

STANDARD OF REVIEW

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Furthermore, although

If it appears from the face of a habeas petition and any attached exhibits that a petitioner is not entitled to relief in the district

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court the petition may be summarily dismissed.

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Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254, Rule 1(b)

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(rules also apply to habeas petitions not under § 2254), Rule 4

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(summary dismissal); Local Rules Governing Duties of Magistrate Judges

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(C.D. Cal.), Rule 3.2.2 (summary dismissal by presented order). DISCUSSION

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See 28 U.S.C. § 2243;

Under 28 U.S.C. § 2241 a federal district court has jurisdiction

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to consider an application for habeas corpus relief which alleges that

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the petitioner “is in custody in violation of the Constitution or laws

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or treaties of the United States.”

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“the authority of the federal courts to grant habeas relief to state

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prisoners under § 2241 is limited by 28 U.S.C. § 2254.”

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Stewart, 105 F.3d 1287, 1287 (9th Cir. 1997)(per curiam)(citing Felker

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v. Turpin, 518 U.S. 651, 662, 116 S. Ct. 2333, 135 L. Ed. 2d 827

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(1996).1

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and he is seeking to challenge the legality of that custody.

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Therefore, even if he seeks to bring his petition under 28 U.S.C.

28 U.S.C. § 2241(c)(3).

However,

Greenawalt v.

Petitioner is in custody pursuant to a state court judgment,

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Petitioner has not offered any basis for determining that his petition, ostensibly under § 2241, is not limited by § 2254. 2

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§ 2241, review is limited by the law applying to petitions under 28

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U.S.C. § 2254.

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prisoner may not use an application under § 2241 to evade the

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limitations on successive petitions that apply to petitions brought

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under § 2254.

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Felker, 518 U.S. at 662.

For example, a state

Greenawalt, 105 F.3d at 1287-88.

A new habeas petition which challenges the same state court

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judgment addressed in one or more prior petitions, is a second or

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successive petition under 28 U.S.C. § 2244 (a)-(b).2

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district court may not consider a second or successive petition unless

A federal

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the petitioner has first obtained an order from the proper federal

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circuit court of appeals authorizing the district court to review the

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new petition.

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may only authorize review of a second or successive petition in the

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district court if the petitioner “makes a prima facie showing [to the

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court of appeals] that the application satisfies the requirements of”

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28 U.S.C. § 2244(b).

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518 U.S. 651, 657, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996).

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See 28 U.S.C. § 2244(b)(3) (A).

The court of appeals

See 28 U.S.C. § 2244(b)(3)(C); Felker v. Turpin,

The present petition is a second or successive petition under

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§ 2244(b)(3)(A) because it challenges the same state court judgment

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challenged in Case No. CV 09-1914, and that petition was dismissed

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with prejudice.

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unless the petitioner has first obtained the required order from the

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United States Court of Appeals for the Ninth Circuit.

This court may not review a successive petition

There is no

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There are exceptions, under which a new petition is not subject to dismissal as successive (for example, if a prior petition was dismissed, without prejudice, for failure to exhaust state remedies, or if a new petition challenges parole decisions that could not have been addressed in a prior petition), but none of these exceptions apply in the present case. 3

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indication in the record that this petitioner has obtained such

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an order.

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without prejudice.

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if and only if he first obtains authorization from the Ninth Circuit

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pursuant to 28 U.S.C. § 2244(b)(3)(A).

Therefore, the present petition is subject to dismissal Petitioner may file a new petition in this court

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ORDERS: 1.

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the petition as successive. 2.

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It is ORDERED that judgment be entered summarily dismissing

The clerk shall serve copies of this order and the judgment

herein on the parties.

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DATED: November 5, 2009

13 14 JOHN F. WALTER United States District Judge

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Presented by:

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Dated:

November 2, 2009

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/s/ CARLA M. WOEHRLE United States Magistrate Judge

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