From Casetext: Smarter Legal Research

Dixon v. Vigra

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
Feb 4, 2013
Civil No. 13-0151 WQH (PCL) (S.D. Cal. Feb. 4, 2013)

Opinion

Civil No. 13-0151 WQH (PCL)

02-04-2013

BENNIE DIXON, Petitioner, v. TIM VIGRA, Warden Respondent.


SUMMARY DISMISSAL OF SUCCESSIVE PETITION

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

Petitioner, Bennie Dixon, 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. 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 October 7, 2005 conviction in San Diego Superior Court case No. SCN189576. On September 24, 2008, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No.08cv1764 JM (BLM). In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCN189576 as well. On April 28, 2010, this Court denied the petition on the merits. (See Order filed April 28, 2010in case No. 08cv1764JM (BLM) [ECF. No. 44].) Petitioner appealed that determination. On December 21, 2011, the Ninth Circuit Court of Appeals denied Petitioner's request for a certificate of appealability. (See Order in Dixon v. Adams, No. 10-55959 (9th Cir. Dec. 21, 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. For Petitioner's convenience, the Clerk of Court shall attach to this Order, a blank Ninth Circuit Application for Leave to File Second or Successive Petition.

IT IS SO ORDERED.

________________________

William Q. Hayes

United States District Judge


Summaries of

Dixon v. Vigra

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
Feb 4, 2013
Civil No. 13-0151 WQH (PCL) (S.D. Cal. Feb. 4, 2013)
Case details for

Dixon v. Vigra

Case Details

Full title:BENNIE DIXON, Petitioner, v. TIM VIGRA, Warden Respondent.

Court:UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

Date published: Feb 4, 2013

Citations

Civil No. 13-0151 WQH (PCL) (S.D. Cal. Feb. 4, 2013)