Opinion
Civil No. 15-0112 LAB (BLM)
03-12-2015
OCIE OLA WRIGHT, JR., Petitioner, v. CONNIE GIBSON, Respondent.
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
Petitioner, Ocie Ola Wright, Jr., 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 February 16, 2006, conviction in San Diego Superior Court case No. SCN164338. On December 4, 2008, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 08cv2255 JM (PCL). In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCN164338 as well. On May 18, 2009, this Court dismissed the petition as untimely. (See Order filed May 18, 2009 in case No. 08cv2255 JM (PCL), ECF No. 19.) Petitioner appealed that determination. On April 27, 2012, the Ninth Circuit Court of Appeals affirmed this Court's dismissal. (See Order in Wright v. McDonald, No. 09-55905 (9th Cir. Apr. 27, 2012), ECF No. 35.) Petitioner subsequently filed another petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 in this Court on August 21, 2013. (See case no. 13cv1958 H (JMA).) The case was dismissed as successive on September 6, 2013. (See Order dated Sept. 6, 2013 in case no. 13cv1958 H (JMA), ECF No. 10.)
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)(3)(A); 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 "Application For Leave To File Second Or Successive Petition or Motion Under 28 U.S.C. § 2254 Or § 2255 , " together with a copy of this Order .
IT IS SO ORDERED. DATED: March 12, 2015
/s/_________
HONORABLE LARRY ALAN BURNS
United States District Judge