Usdc Habeas Ii - Dkt 3 - Order Dismissing Petition

1 2 3 4 5 6 7 8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10 11 12 13 14 15 16

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

17 18

For reasons stated below, this petition is summarily dismissed.

19

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

20 21

Sheriff of Los Angeles County under a contempt judgment issued March

22

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

23

No. BS109420.

24

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

25

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

26

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

27

2009.

28

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

1

1

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

2

Petitioner raised in his prior petition.

3

Petitioner lists this district court as a respondent in the present

4

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

5

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

6

of the Sheriff of Los Angeles County.

9

On the contrary,

STANDARD OF REVIEW

7 8

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

10

court the petition may be summarily dismissed.

11

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

12

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

13

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

14

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

15 16

See 28 U.S.C. § 2243;

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

17

to consider an application for habeas corpus relief which alleges that

18

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

19

or treaties of the United States.”

20

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

21

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

22

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

23

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

24

(1996).1

25

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

26

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,

27 1

28

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

1

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

2

U.S.C. § 2254.

3

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

4

limitations on successive petitions that apply to petitions brought

5

under § 2254.

6

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

7

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

8

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

9

district court may not consider a second or successive petition unless

A federal

10

the petitioner has first obtained an order from the proper federal

11

circuit court of appeals authorizing the district court to review the

12

new petition.

13

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

14

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

15

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

16

28 U.S.C. § 2244(b).

17

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

18

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

19

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

20

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

21

with prejudice.

22

unless the petitioner has first obtained the required order from the

23

United States Court of Appeals for the Ninth Circuit.

This court may not review a successive petition

There is no

24 25 26 27 28

2

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

1

indication in the record that this petitioner has obtained such

2

an order.

3

without prejudice.

4

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

5

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

6

ORDERS: 1.

7 8

the petition as successive. 2.

9 10

It is ORDERED that judgment be entered summarily dismissing

The clerk shall serve copies of this order and the judgment

herein on the parties.

11 12

DATED: November 5, 2009

13 14 JOHN F. WALTER United States District Judge

15 16

Presented by:

17

Dated:

November 2, 2009

18 19 20

/s/ CARLA M. WOEHRLE United States Magistrate Judge

21 22 23 24 25 26 27 28 4