Opinion
21-cv-01354-BAS-AHG
08-09-2021
FRANCISCO RENE HERNANDEZ, Petitioner, v. KATHLEEN ALLISON, Secretary, et al., Respondents.
ORDER:
(1) SUMMARILY DISMISSING SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 244(B)(3)(A);
AND
(2) DENYING ALL OTHER MOTIONS (ECF NOS. 2, 3) AS MOOT
HON. CYNTHIA BASHANT UNITED STATES DISTRICT JUDGE
Petitioner Francisco Rene Hernandez, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma pauperis and a motion to appoint counsel. (ECF Nos. 1-3.) The Court does not rule on Petitioner's request to proceed in forma pauperis or his motion to appoint counsel because this case is summarily dismissed pursuant to 28 U.S.C. § 2244(b)(3)(A) as indicated below.
The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to this Court challenging his March 16, 2010 conviction in San Diego Superior Court No. SCE286092. On July 2, 2012, Petitioner filed in this Court a petition for writ of habeas corpus before Judge Benitez. (See Hernandez v. Beard, Case 12-cv-01682-BEN-DEB (S.D. Cal. July 2, 2012).) In that petition, Petitioner challenged his conviction in San Diego Superior Court No. SCE286092 as well. On October 6, 2013, this Court denied the petition on the merits. (See id., Order Adopting Report and Recommendation, ECF No. 34.) Petitioner appealed that determination. On August 14, 2014, the Ninth Circuit Court of Appeals denied a certificate of appealability. (See id., ECF No. 39; Hernandez v. Virga, No. 13-56966 (9th Cir. Aug. 14, 2014), ECF No. 5.)
On February 19, 2016, Petitioner again filed a petition for writ of habeas corpus in this Court. (See Hernandez v. Beard, No. 16-cv-00470-BEN-JMA (Feb. 19, 2016).) This Court dismissed that petition as successive on January 17, 2017. (See id., ECF No. 25.) Petitioner appealed that determination. On May 8, 2017, the Ninth Circuit Court of Appeals denied Petitioner's request for a Certificate of Appealability. (See id., ECF No. 29; Hernandez v. Beard, et al., No. 17-55126 (9th Cir. May 8, 2017), ECF No. 2.)
Petitioner is now seeking to challenge the same conviction he challenged in his prior federal habeas petitions. Unless Petitioner shows he has obtained an order from the appropriate court of appeals authorizing the district court to consider a successive petition, this Petition may not be filed in the district court. See 28 U.S.C. § 2244(b)(3)(A).
Here, 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 shall mail Petitioner a blank Application for Leave to File a Second or Successive Petition or Motion Under 28 U.S.C. § 2255 or § 2254 together with a copy of this Order.
IT IS SO ORDERED.