Ratliff v. Martel

Filing 2

SUMMARY DISMISSAL OF SECOND OR SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION. The Court DISMISSES this action Without Prejudice to Petitioner's filing a petition in this court if he obtains the necessary or der from the Ninth Circuit Court of Appeals. Signed by Judge Gonzalo P. Curiel on 9/17/2013. (blank Ninth Circuit Application for Leave to FileSecond or Successive Petition sent to Petitioner.)(All non-registered users served via U.S. Mail Service)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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VIRGIL LOUIS RATLIFF,

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13cv2030-GPC(NLS)

Petitioner,

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Civil No.

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

v.
M. MARTEL,1 Warden
Respondent.

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Petitioner, Virgil Louis Ratliff, a state prisoner proceeding pro se, has submitted a

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Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, but without paying the $5.00

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filing fee or requesting leave to proceed in forma pauperis. Irrespective of that obstacle to

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proceeding with this case, the case is summarily dismissed pursuant to 28 U.S.C.

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§ 2244(b)(3)(A) as an unauthorized second or successive petition.
PRIOR FEDERAL HABEAS PETITIONS DENIED ON THE MERITS

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

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submitted to this Court challenging his conviction in San Diego County Superior Court Case No.

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SCD275300, despite some discrepancies in his statement of the date of conviction and the length

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of his sentence when compared to his prior Petition.

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Petitioner names an improper defendant. He is presently confined in Pelican Bay State Prison. The
current warden of that institution is Greg Lewis. On federal habeas, a state prisoner must name the state officer
having custody of him as the respondent. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 894 (9th Cir. 1996) (citing Rule
2(a), 28 U.S.C. foll. § 2254). "[T]he 'state officer having custody' may be 'either the warden of the institution
in which the petitioner is incarcerated . . . or the chief officer in charge of state penal institutions.' " Id. The
chief officer of the California Department of Corrections & Rehabilitation is currently Jeffrey Beard.

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13cv2030

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On August 11, 2010, Ratliff filed in this Court a Petition for Writ of Habeas Corpus in

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Case No. 10cv1705. In that petition, Ratliff challenged his conviction in San Diego Superior

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Court Case No. SCE275300. On August 9, 2012, this Court denied that petition on the merits

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and denied Ratliff's request for a certificate of appealability. (See Order filed Aug. 9, 2012 in

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Case No.10cv1705, ECF No. 140.) Ratliff appealed those determinations. The Ninth Circuit

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Court of Appeals also denied Ratliff's request for a certificate of appealability, terminating the

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action. (See Order filed May 24, 2013 in Case No. 10cv1705, ECF No. 155.)
INSTANT PETITION BARRED BY GATEKEEPER PROVISION

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

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

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court of appeals authorizing the district court to consider a second or 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 second or

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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 second or successive petition, this Court cannot consider his Petition.

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Accordingly, the Court DISMISSES this action without prejudice to Petitioner’s 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.)
IT IS SO ORDERED.

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DATED: September 17, 2013

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HON. GONZALO P. CURIEL
United States District Judge

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CC:

ALL PARTIES

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13cv2030