Dixon v. Virga

Filing 4

SUMMARY DISMISSAL OF SUCCESSIVE PETITION Pursuant To 28 U.S.C. Section 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 Nint h Circuit Court of Appeals. Signed by Judge William Q. Hayes on 2/4/2013. (All non-registered users served via U.S. Mail Service; per Order, a blank Ninth Circuit Application for Leave to File Second or Successive Petition also was sent to Petitioner.) (mdc)

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F lLED 1 i ,., ,..-,", 2 ! ~ ' ••" , -,;.1. """" { .......... 1 -, II I J'~ "". ,j. 55 3 .-"', "", 4 tAO 5 DPUTY 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 BENNIE DIXON, Civil No. 12 Petitioner, 13 14 SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION vs. TIM VIGRA, Warden 15 16 13-0151 WQH (PCL) Respondent. Petitioner, Bennie Dixon, a state prisoner proceeding pro se, has filed a Petition for Writ 17 .. of Habeas Corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in forma 18 II pauperis. The Court does not rule on Petitioner's request to proceed in forma pauperis because 1911 this case is summarily dismissed pursuant to 28 U.S.c. § 2244(b)(3)(A) as indicated below. 20 PETITION BARRED BY GATEKEEPER PROVISION 21 The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has 22 .. submitted to this Court challenging his October 7, 2005 conviction in San Diego Superior Court 23 II case No. SCN189576. On September 24, 2008, Petitioner filed in this Court a Petition for Writ 2411 of Habeas Corpus in case NO.08cv1764 JM (BLM). In that petition, Petitioner challenged his 2511 conviction in San Diego Superior Court case No. SCN189576 as well. On April 28, 2010, this 2611 Court denied the petition on the merits. (See Order filed April 28, 2010in case No. 08cv1764JM 2711 (BLM) [ECF. No. 44].) Petitioner appealed that determination. On December 21, 2011, the 28 !:-'E\lI:t'YMt\..EFI1.LPRo:mWQH\I)(V!)t'I<tIU~e.wpd.I1813 -1- 13cvOlSI 1 II Ninth Circuit Court ofAppeals denied Petitioner's request for a certificate ofappealability. (See 211 Order in Dixon v. Adams, No. 10-55959 (9th Cir. Dec. 21, 2011).) 3 II Petitioner is now seeking to challenge the same conviction he challenged in his prior 411 federal habeas petition. Unless a petitioner shows he or she has obtained an Order from the 5 II appropriate court of appeals authorizing the district court to consider a successive petition, the 6 II petition may not be filed in the district court. See 28 U.S.C. § 2244(b)(3)(A). Here, there is no 7 II indication the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive 8 petition. CONCLUSION 9 10 II Because there is no indication Petitioner has obtained permission from the Ninth Circuit 11 II Court of Appeals to file a successive petition, this Court cannot consider his Petition. 1211 Accordingly, the Court DISMISSES this action without prejudice to Petitioner filing a petition 13 II in this court if he obtains the necessary order from the Ninth Circuit Court of Appeals. For 1411 Petitioner's convenience, the Clerk of Court shall attach to this Order, a blank Ninth Circuit 15 II Application for Leave to File Second or Successive Petition. 1611 IT IS SO ORDERED. 17 1811 DATED: 19 ~ William Q. HayJ's United States Distr~t Judge 20 21 22 23 24 25 26 27 28 htveryon""_EFru;...PJl.OSE''wQH\ll<..''''()l~! _ _;~~,...,..L IlH!:t -2- 13cv01SI

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