Gonzalez v. Sherman 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 Gonzalo P. Curiel on 11/6/2015. (All non-registered users served via U.S. Mail Service)(Petitioner mailed a blank Ninth Circuit Application for Leave to File Second or Successive Petition)(srm)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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SALVADOR M. GONZALEZ,

Case No. 15cv2419 GPC (RBB)
Plaintiff,

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

v.
S. SHERMAN, Warden,

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Defendant.

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Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.

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§ 2254, along a copy of his trust account statement, which this Court construes as a request

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

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forma pauperis because this case is summarily dismissed pursuant to 28 U.S.C.

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§ 2244(b)(3)(A) as indicated 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

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has submitted to this Court challenging his June 15, 2007 conviction in Imperial County

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Superior Court case number JCF18113.

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Court, a Petition for Writ of Habeas Corpus in case No. 10cv2243. In that petition,

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Petitioner challenged his June 15, 2007 conviction as well. On August 26, 2013, this Court

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denied the petition on the merits. (See Order filed Aug. 26, 2013 in case No. 10cv2243

On October 28, 2010, Petitioner filed, in this

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15cv2419 GPC (RBB)

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JLS (RBB) [ECF No. 31].) Petitioner appealed that determination. On September 12,

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2014, the Ninth Circuit Court of Appeals denied Petitioner’s request for certificate of

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appealability. (See Order in Gonzalez v. Busby, No.13-56594 (9th Cir. Sept. 12, 2014).)

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Petitioner is now seeking to challenge the sentence imposed as a result the conviction

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he challenged in his prior federal habeas petition. Unless a petitioner shows he or she has

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obtained an Order from the appropriate court of appeals authorizing the district court to

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consider a successive petition, the petition may not be filed in the district court. See 28

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U.S.C. § 2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 153 (2007) (a petition

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is successive where it challenges “the same custody imposed by the same judgment of a

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state court” as a prior petition). A successive application is permissible “only if it rests on

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a new rule of constitutional law, facts that were previously unavailable, or facts that would

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be sufficient to show constitutional error in the petitioner's conviction.” Woods v. Carey,

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525 F.3d 886, 888 (9th Cir. 2008). “Even if a petitioner can demonstrate that he qualifies

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for one of these exceptions, he must seek authorization from the court of appeals before

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filing his new petition with the district court.” Id. Here, there is no indication the Ninth

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Circuit Court of Appeals has granted Petitioner leave to file a successive petition.1

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CONCLUSION

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

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

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Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner

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filing a petition in this court if he obtains the necessary order from the Ninth Circuit Court

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In his Petition, Petitioner indicates that on October 22, 2015 he submitted a motion for leave to file a
second or successive petition with the Ninth Circuit Court of Appeals. (See Pet. at 5, 78-81.) He has
not, however, indicated that the request has been granted by the Court of Appeals.
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15cv2419 GPC (RBB)

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of Appeals. For Petitioner’s convenience, the Clerk of Court shall attach a blank Ninth

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Circuit Application for Leave to File Second or Successive Petition.

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IT IS SO ORDERED.
Dated: November 6, 2015

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15cv2419 GPC (RBB)