1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 For reasons stated below, this petition is summarily dismissed. BACKGROUND The pro se petitioner, Richard I.

Fine, is in the custody of the Sheriff of Los Angeles County under a contempt judgment issued March 4, 2009, by the California Superior Court, Los Angeles County, in Case No. BS109420. Petitioner previously sought to challenge that custody 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 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

in a petition for writ of habeas corpus, under 28 U.S.C. § 2254, in this court, in Case No. CV 09-1914-JFW(CW). That prior petition was

denied and dismissed with prejudice in a judgment entered June 29, 2009. Petitioner’s appeal of that denial is pending before the United

States Court of Appeals for the Ninth Circuit in Case No. 09-56073. 1

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The present petition is simply an attempt to re-argue issues Petitioner raised in his prior petition. Furthermore, although

Petitioner lists this district court as a respondent in the present petition, he is not in the custody of this court. On the contrary,

this court has simply declined to order him released from the custody of the Sheriff of Los Angeles County. STANDARD OF REVIEW 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 court the petition may be summarily dismissed. See 28 U.S.C. § 2243;

Rules Governing Section 2254 Cases, 28 U.S.C. foll. § 2254, Rule 1(b) (rules also apply to habeas petitions not under § 2254), Rule 4 (summary dismissal); Local Rules Governing Duties of Magistrate Judges (C.D. Cal.), Rule 3.2.2 (summary dismissal by presented order). DISCUSSION Under 28 U.S.C. § 2241 a federal district court has jurisdiction to consider an application for habeas corpus relief which alleges that the petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(c)(3). However,

“the authority of the federal courts to grant habeas relief to state prisoners under § 2241 is limited by 28 U.S.C. § 2254.” Greenawalt v.

Stewart, 105 F.3d 1287, 1287 (9th Cir. 1997)(per curiam)(citing Felker v. Turpin, 518 U.S. 651, 662, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996).1 Petitioner is in custody pursuant to a state court judgment,

and he is seeking to challenge the legality of that custody. Therefore, even if he seeks to bring his petition under 28 U.S.C.
1

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 U.S.C. § 2254. Felker, 518 U.S. at 662. For example, a state

prisoner may not use an application under § 2241 to evade the limitations on successive petitions that apply to petitions brought under § 2254. Greenawalt, 105 F.3d at 1287-88.

A new habeas petition which challenges the same state court judgment addressed in one or more prior petitions, is a second or successive petition under 28 U.S.C. § 2244 (a)-(b).2 A federal

district court may not consider a second or successive petition unless the petitioner has first obtained an order from the proper federal circuit court of appeals authorizing the district court to review the new petition. See 28 U.S.C. § 2244(b)(3) (A). The court of appeals

may only authorize review of a second or successive petition in the district court if the petitioner “makes a prima facie showing [to the court of appeals] that the application satisfies the requirements of” 28 U.S.C. § 2244(b). See 28 U.S.C. § 2244(b)(3)(C); Felker v. Turpin,

518 U.S. 651, 657, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996). The present petition is a second or successive petition under § 2244(b)(3)(A) because it challenges the same state court judgment challenged in Case No. CV 09-1914, and that petition was dismissed with prejudice. This court may not review a successive petition

unless the petitioner has first obtained the required order from the United States Court of Appeals for the Ninth Circuit. There is no

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

2

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indication in the record that this petitioner has obtained such an order. Therefore, the present petition is subject to dismissal Petitioner may file a new petition in this court

without prejudice.

if and only if he first obtains authorization from the Ninth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A). ORDERS: 1. It is ORDERED that judgment be entered summarily dismissing

the petition as successive. 2. The clerk shall serve copies of this order and the judgment

herein on the parties.

DATED: November 5, 2009

JOHN F. WALTER United States District Judge Presented by: Dated: November 2, 2009

/s/ CARLA M. WOEHRLE United States Magistrate Judge

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