Opinion
Civil No. 05cv0119 JAH (AJB).
October 3, 2005
Report and Recommendation Granting Motion to Dismiss [Doc. No. 9]
Petitioner Richard William Stewart, a state prisoner proceeding pro se, filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Respondent filed a Motion to Dismiss, but the Petitioner has failed to file an Opposition to Respondents Motion. The instant Petition is not the first Petition for Writ of Habeas Corpus Stewart has submitted to this Court challenging his February 2, 1999, conviction in San Diego County Superior Court Case No. SCD138543 for the unlawful taking of a vehicle.
Prior Federal Habeas Petitions Denied on the Merits
On June 6, 2002, Petitioner challenged this same conviction in a habeas petition under 28 U.S.C. § 2254, which was denied by this Court on the merits on April 23, 2004. See Stewart v. A. Lamarque, et al., case no. 02cv1104 H (BEN). On July 28, 2004, Stewart filed another Habeas Petition in this Court, raising the same issues as those contained in his 2002 Petition. The Court dismissed this Petition as successive on August 5, 2004. See Stewart v. Caden, Warden, case no. 04cv1627 J (WMC) (citing the Order filed August 5, 2004, in case no. 04cv1521BEN (WMC). The instant Petition is challenging the same February 2, 1999, conviction as the previous Petitions.
Instant Petition Is Barred By Gatekeeper Provision
Section 2244(b)(1) provides that where a claim is presented in a second or success habeas corpus petition under section 2254 that has been presented in a prior application, that claim shall be dismissed. 28 U.S.C. § 2244(b)(1). This section applies to bar a second or successive petition even where the first petition was dismissed as time-barred. Reyes v. Vaughn, 276 F. Supp. 2d 1027, 1029 (C.D. Cal. 2003).
Since the Petition seeks to challenge the same conviction he challenged in his prior Federal Habeas Petitions, the Petitioner must show that he has obtained an order from the appropriate Court of Appeal authoring the District Court to consider a successive petition. See 28 U.S.C. § 2244(b)(3)(A). Until such time as the Petitioner obtains an order from the Ninth Circuit Court of Appeal granting the Petitioner leave to file a successive petition, his Habeas Petition may not be filed or considered by the District Court. There is no indication in the record that the Petitioner was granted leave by the Ninth Circuit to file the instant Petition. On the contrary, Petitioner indicates on page five of his First Amended Petition for Writ of Habeas Corpus that he was not given permission by the Ninth Circuit to file this second or successive Petition. As such, the Court cannot consider the instant Petition.
Conclusion
For the reasons set forth above, the Court hereby recommends that Respondent's Motion to Dismiss pursuant 28 U.S.C. § 2244(b) be GRANTED without prejudice to Stewart filing a petition in this Court after he first obtains the necessary order from the Ninth Circuit Court of Appeal granting him leave to file a successive petition.
This report and recommendation will be submitted to the United States District Judge assigned to this case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Any party may file written objections with the court and serve a copy on all parties by October 24, 2005. The document should be captioned "Objections to Report and Recommendation." Any reply to the objections shall be served and filed by November 7, 2005. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
IT IS SO ORDERED.