Case No. CV 17-4734-RSWL (PJW).

ANTHONY BARKER, Petitioner, v. DEAN BORDERS, WARDEN, Respondent.

United States District Court, C.D. California.

Editors Note
Applicable Law: 28 U.S.C. § 2254
Cause: 28 U.S.C. § 2254 Petition for Writ of Habeas Corpus (State)
Nature of Suit: 530 Habeas Corpus (General)
Source: PACER

Attorney(s) appearing for the Case

Anthony Barker, Petitioner, Pro Se.


RONALD S.W. LEW, District Judge.

Before the Court is Petitioner's third attempt to challenge his 1995 state convictions and sentence. His first petition was denied on the merits in June 2001. (Barker v. Garcia, CV 01-1790-CM (CT), June 22, 2001 Order.) The Ninth Circuit Court of Appeals then denied his application for a certificate of appealability. (CCA No. 01-56312, January 18, 2002 Order.) Thereafter, Petitioner moved for permission to raise a newly-exhausted claim that had earlier been dismissed without prejudice, which the Ninth Circuit granted nunc pro tunc. Construing the Ninth Circuit's order as an authorization to file a second or successive petition, the Court denied the petition on the merits in 2003. (Barker v. Garcia, CV 02-6040-TJH (CT), January 13, 2003 Order.) The Court and the Ninth Circuit subsequently denied Petitioner's applications for a certificate of appealability.

In April 2015, Petitioner filed a new application, which the Court dismissed as an unauthorized second or successive petition. (Barker v. Perez, CV 15-2963-RSWL (PJW), April 27, 2015 Order.) Petitioner did not appeal that dismissal.

Absent authorization from the Ninth Circuit, Petitioner may not bring another habeas petition challenging his 1995 conviction and sentence. See 28 U.S.C. § 2244; see also Burton v. Stewart, 549 U.S. 147, 157 (2007) (holding district court lacks jurisdiction to consider the merits of a second or successive petition absent prior authorization from the circuit court). For this reason, the Petition is dismissed.

The Court further finds that Petitioner has not made a substantial showing of the denial of a constitutional right or that the court erred in its procedural ruling and, therefore, a certificate of appealability will not issue in this action. See 28 U.S.C. § 2253(c)(2); Fed. R. App. P. 22(b); Miller-El v. Cockrell, 537 U.S. 322, 336 (2003); Slack v. McDaniel, 529 U.S. 473, 484 (2000).



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