Opinion
Civil No. 05cv2338-L (BLM).
January 9, 2006
ORDER DISMISSING HABEAS PETITION WITHOUT PREJUDICE AS SECOND OR SUCCESSIVE
On December 22, 2005, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. In this action Petitioner is challenging the sentence imposed following his August 6, 1998 San Diego County Superior Court conviction in Case No. SCD-136036. (See Pet. at 1.)
PRIOR FEDERAL HABEAS PETITIONS DENIED ON THE MERITS
On May 17, 2002, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in SO. DIST. CA. CIVIL CASE No. 02cv0982-L (BEN). (See Petition in SO. DIST. CA. CIVIL CASE No. 02cv0982-L (BEN), filed 5/17/02.) In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCD-136036. (Id. at p. 1.) On June 1, 2004, this Court denied the petition on its merits. (See Order filed 6/1/04 in SO. DIST. CA. CIVIL CASE NO. 02cv0982-L (BEN).) Petitioner appealed that determination. On August 24, 2004, the Ninth Circuit Court of Appeals denied Petitioner's request for a Certificate of Appealability and dismissed the appeal. (See Order filed 8/24/04, Doc. No. 28 in SO. DIST. CA. CIVIL CASE NO. 02cv0982-L (BEN).)
INSTANT PETITION BARRED BY GATEKEEPER PROVISION
Petitioner is now seeking to challenge the sentence imposed for the same conviction he challenged in his prior federal habeas petition. Unless a petitioner shows he or she has obtained an order from the appropriate court of appeals authorizing the district court to consider a successive petition, the petition may not be filed in the district court. See 28 U.S.C. § 2244(b). Although Petitioner apparently only wishes to present a challenge to his sentence in the instant action, as opposed to the challenge he presented to the conviction itself in the prior petition, the instant petition is nevertheless considered successive under section 2244(b). See Hill v. Alaska, 297 F.3d 895, 898 (9th Cir. 2002) (noting that second petition is successive where claims presented therein could have been raised in prior petition). Here, there is no indication the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive petition.
CONCLUSION
Because there is no indication Petitioner has obtained permission from the Ninth Circuit Court of Appeals to file a successive petition, this Court cannot consider his Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner filing a petition in this court if he obtains the necessary order from the Ninth Circuit Court of Appeals. (Attached for Petitioner's convenience is a blank Ninth Circuit Application for Leave to File Second or Successive Petition.)
The Clerk shall close the file.
IT IS SO ORDERED.