Santos v. Salazar et al

Filing 3

Summary Dismissal of Successive Petition Pursuant to 28 U.S.C. Section 2244(b)(3)(A)Gatekeeper Provision. Case dismissed without prejudice. Signed by Judge William Q. Hayes on 2/12/2007. Per Order, this Order and a blank Ninth Circuit Application for Leave to File Second or Successive Petition mailed to Petitioner. (mdc) (bar, ).

Download PDF
Santos v. Salazar et al Doc. 3 Case 3:07-cv-00191-WQH-PCL Document 3 Filed 02/12/2007 Page 1 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Although Petitioner now contends that his 1999 Petition was denied on the basis that he failed to exhaust state court remedies (see Pet. at 5), the 1999 Petition was clearly denied on its merits. K:\COMMON\EVERYONE\_EFILE-PROSE\WQH\07cv0191-Dismiss.wpd, 2127 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA JUAN MATTA SANTOS, Petitioner, vs. J. F. SALAZAR, Warden, et al., Respondents. Civil No. 07cv0191-WQH (PCL) SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. 2244(b)(3)(A) GATEKEEPER PROVISION Petitioner, Juan Matta Santos, 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 in forma pauperis request because this case is summarily dismissed pursuant to 28 U.S.C. 2244(b)(3)(A) as indicated below. PRIOR FEDERAL HABEAS PETITIONS DENIED ON THE MERITS On July 1, 1999, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in SO. DIST. CA. CIVIL CASE NO. 99cv1364-JM (AJB). (See Petition in SO. DIST. CA. CIVIL CASE NO. 99cv1364-JM (AJB), filed 7/1/99.) In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCD121236. (Id. at p. 1.) On May 12, 2000, this Court denied the petition on the merits of the claims presented.1 (See Order filed 5/12/00 in SO. DIST. CA. CIVIL CASE NO. 99cv1364-JM (AJB).) Petitioner appealed that determination. On December 1 -1- 07cv0191 Dockets.Justia.com Case 3:07-cv-00191-WQH-PCL Document 3 Filed 02/12/2007 Page 2 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8, 2000, the Ninth Circuit Court of Appeals denied Petitioner's request for a Certificate of Appealability and dismissed the appeal. (See Order filed 12/8/00, Doc. No. 22 in SO. DIST. CA. CIVIL CASE NO. 09cv1364-JM (AJB).) INSTANT PETITION BARRED BY GATEKEEPER PROVISION Petitioner is now seeking to once again challenge his San Diego Superior Court conviction and sentence in case number SCD121236 (Pet. at 1), which is the same conviction and sentence 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). Although Petitioner now wishes to present claims alleging ineffective assistance of trial and appellate counsel predicated on events which happened at trial and appeal, but were not raised in the first petition, the instant petition is nevertheless considered successive under section 2244(b). See Hill v. Alaska, 297 F.3d 895, 898 (9th Cir. 2002) (noting that second petition is successive where claims presented therein could have been raised in prior petition); Babbitt v. Woodford, 177 F.3d 744, 747 (9th Cir. 1999) (finding as successive claims of ineffective assistance of counsel predicated on facts which were known or should have been known at the time of trial). Even to the extent Petitioner contends that claim four, relating to the modification of the abstract of judgment, could not have been presented in the original petition because the abstract of judgment was modified seven years after his conviction (see Pet. at 9), Petitioner does not identify a federal constitutional error arising from his allegations in this regard, but merely makes vague references to "due process," "equal protection," "ex post facto" etc., and as such this Court lacks jurisdiction over the claim. See Hernandez v. Ylst, 930 F.2d 714, 719 (9th Cir. 1991) (claims alleging violations of state law or state constitutional provisions are insufficient to state a federal habeas claim absent specific allegations pointing to a violation of federal law or the federal constitution). 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. -207cv0191 K:\COMMON\EVERYONE\_EFILE-PROSE\WQH\07cv0191-Dismiss.wpd, 2127 Case 3:07-cv-00191-WQH-PCL Document 3 Filed 02/12/2007 Page 3 of 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 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. (Attached for Petitioner's convenience is a blank Ninth Circuit Application for Leave to File Second or Successive Petition.) The dismissal is also without prejudice to Petitioner to proceed with a new federal habeas petition, which will be given a new civil case number, in which he presents federal claims which he did not have the opportunity to raise in his original petition, if any such claims exist. The Clerk shall include a blank Ninth Circuit Application for Leave to File Second or Successive Petition form along with this Order and shall close the file. IT IS SO ORDERED. DATED: February 12, 2007 WILLIAM Q. HAYES United States District Judge K:\COMMON\EVERYONE\_EFILE-PROSE\WQH\07cv0191-Dismiss.wpd, 2127 -3- 07cv0191

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?