Barry Marlon Summers v. Gary S Sandor, 5:12-cv-01545

Petitioner Barry Summers was convicted in 2002 in San Bernardino County Superior Court (FSB029047) of three counts of lewd act on a child and was sentenced to 25 years to life (deterministic terms plus a further indeterminate term).
Summers appealed; California Court of Appeal affirmed in 2004 and the California Supreme Court denied review in 2004.
Summers filed a prior §2254 petition in 2005–2007; a judgment denied the petition and a certificate of appealability was denied by both the district court and the Ninth Circuit.
Summers filed state habeas petitions in California Supreme Court (2007, 2012 denials).
The petition at issue here, filed August 28, 2012, is a constructively filed second or successive §2254 petition subject to 28 U.S.C. §2244(b) authorization, which the court found lacking.
The court dismissed the petition without prejudice for lack of authorization to file a second or successive §2254 petition.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Summers’ petition is second or successive requiring circuit authorization.	Summers argues the petition qualifies for relief on the merits.	The court lacks jurisdiction because no authorization from the Ninth Circuit was obtained.	Dismissed for lack of circuit authorization; no jurisdiction to address merits.

Cooper v. Calderon, 274 F.3d 1270 (9th Cir. 2001) (second/successional petition framework; authorization required)
McNabb v. Yates, 576 F.3d 1028 (9th Cir. 2009) (time-bar dismissal can dispose merits for successive petitions)
Reyes v. Vaughn, 276 F. Supp. 2d 1027 (C.D. Cal. 2003) (time-bar/second petition consequences in district court)
Hendricks v. Vasquez, 908 F.2d 490 (9th Cir. 1990) (summary dismissal principles for baseless petitions)
Cooper v. Calderon, 274 F.3d 1270 (9th Cir. 2001) (reiterates authority requirement for second/successive §2244 petitions)