Benitez v. Hernandez et al

Filing 4

Summary Dismissal of Successive Petition Pursuant to 28 U.S.C. § 2244(b)(3)(A)Gatekeeper Provision. 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. Signed by Judge Barry Ted Moskowitz on 1/30/08. (copy of Ninth Circuit Application for Leave to File Second or Successive Petition sent) (vet)

Benitez v. Hernandez et al

Doc. 4

Case 3:08-cv-00154-BTM-BLM

Document 4

Filed 01/31/2008

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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 -1vs. ROBERT HERNANDEZ, el al., Respondents. GILBERTO BENITEZ, Petitioner, Civil No. 08-0154 BTM (BLM) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION

Petitioner, Gilberto Benitez, 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 May 16, 1996, conviction in San Diego Superior Court case No. SCD 111483. On October 7, 1998, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 98cv1816. In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCD 111483 as well. On June 26, 2002, this Court denied the petition on the merits. (See Order filed June 26, 2002 in case No. 98cv1816 K (BEN) [Doc. No. 62].) Petitioner appealed that determination. On February 18, 2004, the Ninth Circuit Court

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08cv0154

Dockets.Justia.com

Case 3:08-cv-00154-BTM-BLM

Document 4

Filed 01/31/2008

Page 2 of 2

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of Appeals affirmed the District Court's dismissal. (See Order in Mendez, aka Gilberto Benitez v. Roe, et al., No. 02-56372 (9th Cir. Feb. 18, 2004).) 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. THE CLERK OF COURT IS DIRECTED TO MAIL PETITIONER A BLANK NINTH CIRCUIT APPLICATION FOR LEAVE TO FILE SECOND OR SUCCESSIVE PETITION or MOTION UNDER 28 U.S.C. § 2254. IT IS SO ORDERED.

DATED: January 30, 2008

Honorable Barry Ted Moskowitz United States District Judge

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08cv0154