Opinion
Case No.: 19cv0742 MMA (MDD)
07-15-2019
JUAN M. CASTRO. C., Petitioner, v. UNKNOWN, Respondent.
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
Petitioner, Juan M. Castro C., a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He has not paid the $5.00 filing fee and has not filed a motion to proceed in forma pauperis. The Court does not rule on Petitioner's in forma pauperis status because this case is summarily dismissed pursuant to 28 U.S.C. § 2244(b)(3)(A) as indicated below.
PRIOR PETITIONS FILED BY PETITIONER
The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to this Court challenging his December 10, 1999 conviction and March 24, 2000 sentence in San Diego Superior Court case No. SCD097339. On July 1, 2004, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case no. 04cv1325 WQH (POR). In that petition, Petitioner challenged his conviction and sentence in San Diego Superior Court case No. SCD097339 as well. On August 3, 2005, this Court denied the petition as untimely. (See Order filed August 3, 2005 in case No. 04cv1325 WQH (POR) [ECF No. 15].) Petitioner thereafter filed another habeas corpus petition pursuant to 28 U.S.C. § 2254 in this Court in case no. 09cv0163 H (WMc) challenging his conviction and sentence in San Diego Superior Court case No. SCD097339. On February 2, 2009, this Court dismissed the petition as successive. (See Order filed February 2, 2009 in case No. 09cv0163 H (WMc) [ECF No. 13].)
INSTANT PETITION BARRED BY GATEKEEPER PROVISION
Petitioner is now seeking to challenge the same conviction he challenged in his prior federal habeas petitions. 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); McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding that dismissal for failure to comply with one-year statute of limitations renders subsequent petitions challenging the same conviction or sentence "second or successive" under 2244(b)). 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. Dated: July 15, 2019
/s/_________
Hon. Michael M. Anello
United States District Judge CC: ALL PARTIES