George v. People of the State of California

Filing 4

SUMMARY DISMISSAL of Successive Petition Pursuant to 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 Anthony J. Battaglia on 3/13/13. (Forms mailed)(All non-registered users served via U.S. Mail Service)(cge)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RICHARD EARL GEORGE,

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Civil No.

13-0555 AJB (NLS)

Petitioner,

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

vs.
PEOPLE OF THE STATE OF CALIFORNIA,
Respondent.

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Petitioner, Richard Earl George, a state prisoner proceeding pro se, has filed a Petition

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for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 together with a request to proceed in

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forma pauperis. The Court does not rule on Petitioner’s request to proceed in forma pauperis

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because this case is summarily dismissed pursuant to 28 U.S.C. § 2244(b)(3)(A) as indicated

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below.

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PETITION BARRED BY GATEKEEPER PROVISION

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The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has

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submitted to this Court challenging his November 22, 205 conviction in San Diego Superior

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Court case No. SCD 17983. On November 19, 2007, Petitioner filed in this Court a Petition for

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Writ of Habeas Corpus in case No. 07cv2215 J (POR). In that petition, Petitioner challenged

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his conviction in San Diego Superior Court case No. SCD 17983 as well. On September 24,

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2009, this Court denied the petition on the merits. (See Order filed Sept. 24, 2009 in case No.

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07cv2215 J (POR) [ECF No. 28].) Petitioner appealed that determination. On May 5, 2011 ,

I:\Chambers Battaglia\DJ CASES\2 Orders to be filed\Successive.wpd, 31313

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13cv0555

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the Ninth Circuit Court of Appeals affirmed this Court’s decision. (See Order in George v.

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Almager, 09-56835 (9th Cir. May 5, 2011).)

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On March 29, 2012, Petitioner filed another petition for writ of habeas corpus in case No.

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12cv00790 LAB (WMc), in which he again challenged his conviction in San Diego Superior

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Court case No. SCD17983. On April 4, 2012, this Court summarily dismissed the petition as

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successive, pursuant to 28 U.S.C. §2244(b)(3)(A). (See Order filed April 4, 2012 in case No.

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12cv0790 LAB (WMc) [ECF No. 3].) On August 8, 2012, the Ninth Circuit Court of Appeals

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denied Petitioner’s application for authorization to file a second or successive petition. (See

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Order in George v. Vazquez, 12-71663 (9th Cir. Aug. 8, 2012).) The appellate court denied

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another such application from Petitioner on February 27, 2012. (See Order in George v. Biter,

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12-73793 (9th Cir. Feb. 27, 2013).)

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

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federal habeas petitions. 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)(3)(A). Here, there is no

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indication the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive

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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.1

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IT IS SO ORDERED.
DATED: March 13, 2013

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Hon. Anthony J. Battaglia
U.S. District Judge

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Attached for Petitioner’s convenience is a blank Ninth Circuit Application for Leave to File
Second or Successive Petition.
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