Carter v. Paramo

Full title: WILLIAM CARTER, Petitioner, v. DANIEL PARAMO, Warden, Respondent.

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Date published: Mar 15, 2012

Civil No. 12-0594 BEN (PCL) (S.D. Cal. Mar. 15, 2012)

Opinion

Civil No. 12-0594 BEN (PCL)

03-15-2012

WILLIAM CARTER, Petitioner, v. DANIEL PARAMO, Warden, Respondent.

ROGER T. BENITEZ

SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT

TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION

Petitioner William Carter, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The ease is summarily dismissed pursuant to 28 U.S.C. § 2244(b)(3)(A) as indicated below.

PETITION BARRED BY GATEKEEPER PROVISION

The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to this Court challenging his December 1, 1994 conviction in San Diego Superior Court Case No. SCD104621. On June 10, 1998, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in Case No. 98-cv-1089. In that petition, Petitioner challenged his conviction in San Diego Superior Court Case No. SCD 104621 as well. On July 6,1999, this Court denied the petition on the merits. (See Order filed July 6, 1999 in Case No. 98cv0594 B (JFS) [Doc. No. 10].) Petitioner requested a certificate of appealability in the Ninth Circuit, which was denied on December 16, 1999. (See Order in Carter v. Rice, No. 99-56400 (9th Cir. Dec. 16,1999).)

Petitioner is now seeking to challenge 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)(3)(A). 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. The Clerk of Court is directed to send Petitioner a blank Ninth Circuit Application for Leave to File Second or Successive Petition.

IT IS SO ORDERED.

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HON ROGER T. BENITEZ

United States District Court Judge