Weaver v. McEwen et al

Filing 4

ORDER DISMISSING Habeas Petition without Prejudice as Second or Successive: 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 Janis L. Sammartino on 12/6/11.(All non-registered users served via U.S. Mail Service)(form sent)(lmt)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICKEY LENELL WEAVER,

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Civil No.

11-2701 JLS (RBB)

Petitioner,
ORDER DISMISSING HABEAS
PETITION WITHOUT PREJUDICE
AS SECOND OR SUCCESSIVE

vs.
L.S. MCEWEN, Warden, et al.,

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Respondents.

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On November 14, 2011, Petitioner, a state prisoner proceeding pro se, filed a Petition for

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Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. In this action Petitioner is challenging his

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January 29, 1997 San Diego County Superior Court conviction and sentence in Case No.

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SCD118179 (See Pet. at 1.)

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PRIOR FEDERAL HABEAS PETITIONS DENIED ON THE MERITS

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On October 21, 2002, Petitioner filed in this Court a Petition for Writ of Habeas Corpus

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in SO. DIST. CA. CIVIL CASE NO. 02cv2073 BEN (NLS). (See Petition in SO. DIST. CA. CIVIL

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CASE NO. 02cv2073 BEN (NLS), filed 10/21/02.) In that petition, Petitioner challenged his

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conviction and sentence in San Diego Superior Court case No. SCD118179 On February 7,

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2006, this Court dismissed the petition because it had been filed after the expiration of the one-

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year statute of limitations. (See Order in SO. DIST. CA. CIVIL CASE NO. 02cv2073 BEN (NLS),

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filed 2/7/06 [ECF No. 28].) Petitioner appealed that determination. On May 16, 2007, the Ninth
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11cv2701

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Circuit Court of Appeals affirmed the district court’s decision. (See Order in Weaver v.

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Alameida, No. 06-55501 (9th Cir. May 16, 2007) [ECF No. 36].)

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INSTANT PETITION BARRED BY GATEKEEPER PROVISION

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Petitioner is now seeking to challenge the same conviction he challenged in his prior

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federal habeas petition. Unless a petitioner shows he or she has obtained an order from the

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appropriate court of appeals authorizing the district court to consider a successive petition, the

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petition may not be filed in the district court. See 28 U.S.C. § 2244(b); Murray v. Greiner, 394

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F.3d 78 (2d Cir. 2005) (holding that dismissal for failure to comply with one-year statute of

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limitations renders subsequent petitions challenging the same conviction or sentence “second

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or successive” under 2244(b)); Reyes v. Vaughn, 276 F.Supp.2d 1027, 1029 (C. D. Cal. 2003)

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(same). Here, there is no indication the Ninth Circuit Court of Appeals has granted Petitioner

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leave to file a successive petition.
CONCLUSION

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Because there is no indication Petitioner has obtained permission from the Ninth Circuit

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Court of Appeals to file a successive petition, this Court cannot consider his Petition.

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Accordingly, the Court DISMISSES this action without prejudice to Petitioner filing a petition

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in this court if he obtains the necessary order from the Ninth Circuit Court of Appeals.

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(Attached for Petitioner’s convenience is a blank Ninth Circuit Application for Leave to File

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Second or Successive Petition.)

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The Clerk shall close the file.

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IT IS SO ORDERED.

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DATED: December 6, 2011
Honorable Janis L. Sammartino
United States District Judge

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11cv2701