Opinion
Case No.: 3:18-cv-0172-H-PCL
01-31-2018
DARRYL DUNSMORE, Petitioner, v. MICHAEL MARTEL, Warden, Respondent.
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
Petitioner Darryl Dunsmore, 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. (ECF Nos. 1, 2.) 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 June 10, 2010 conviction in San Diego Superior Court case No. SCS 215653. On May 17, 2013, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 13-cv-1193-GPC-PCL. In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCS 215653 as well. On August 10, 2015, this Court denied the petition on the merits. (See Order filed Aug. 10, 2015 in case No. 13-cv-1193-GPC-PCL, ECF No. 115.) Petitioner appealed that determination. On February 16, 2016, the Ninth Circuit Court of Appeals declined to issue a Certificate of Appealability. (See Order in Dunsmore v. Harris, et al., No. 15-56308 (9th Cir. Feb. 16, 2016), filed in case No. 13-cv-1193-GPC-PCL, ECF No. 131.)
Petitioner is now seeking to challenge the same conviction he challenged in his prior federal habeas petition. (See ECF No. 1.) 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. DATED: January 31, 2018
/s/_________
MARILYN L. HUFF, District Judge
UNITED STATES DISTRICT COURT