Opinion
Civil No. 12-0790 LAB (WMc)
04-05-2012
RICHARD EARL GEORGE, Petitioner, v. ANTHONY HEDGPETH, Warden, et al., Respondents.
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT
TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
Petitioner Richard Earl George, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, but has failed to pay the $5.00 filing fee or submit a motion to proceed in forma pauperis. The Court does not rule on Petitioner's request to proceed in forma pauperis because this case 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 November 22, 2005 conviction in San Diego Superior Court case No. SCD179831. On November 19, 2007, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 07cv2215 J (POR). In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCD179831 as well. On September 24, 2009, the Court denied the petition on the merits. (See Order filed Sept. 24, 2009 in case No. 07cv2215 J (POR) [ECF No. 25].) Petitioner appealed that determination. On May 5, 2011, the Ninth Circuit Court of Appeals affirmed this Court's decision. (See Order in George v. Almager, No. 09-56835 (9th Cir. May 5, 2011).)
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 mail Petitioner a blank Ninth Circuit Application for Leave to File Second or Successive Petition together with a copy of this Order.
IT IS SO ORDERED.
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HONORABLE LARRY ALAN BURNS
United States District Judge