Cosby v. Vasquez

Filing 2

Summary Dismissal of Successive Petition. Because there is no indication Petitioner has obtained permission from the Ninth Circuit Court of Appeals to file a successive petition, this Court cannot consider his Petition. The Court dismisses this a ction without prejudice to Petitioner filing a petition in this court if he obtains the necessary order from the Ninth Circuit Court of Appeals. The Clerk of Court is directed to mail Petitioner a blank Application to File a Second or Successive Petition or Motion. Signed by Judge Gonzalo P. Curiel on 3/23/16.(All non-registered users served via U.S. Mail Service; Blank Petition mailed)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KEITH COSBY,

Case No.: 16-0639 GPC (MDD)
Petitioner,

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

v.
FELIZ VASQUEZ, Warden,

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Respondent.

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Petitioner, Keith Cosby, a state prisoner proceeding pro se, has filed a Petition for

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Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. He has not paid the $5.00 fee and

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

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forma pauperis status 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
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 October 26, 1988 conviction in San Diego

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Superior Court case No. CR-84617. On October 12, 1993, Petitioner filed in this Court a

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Petition for Writ of Habeas Corpus in case No. 93cv1554 R (LSP). In that petition,

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Petitioner challenged his conviction in San Diego Superior Court case No. CR-84617 as

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well. On January 4, 1996, this Court denied the petition on the merits. (See Order filed
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16-0639 GPC (MDD)

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January 4, 1996 in case No. 93cv1554 R (LSP) [Doc. No. 18].) Petitioner did not appeal

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that determination.

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On February 11, 2004, Petitioner filed in this Court a Petition for Writ of Habeas

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Corpus in case No. 04cv0292 W (JMA). In that petition, Petitioner again challenged his

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conviction in San Diego Superior Court case No. CR-84617. On February 23, 2004, this

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Court dismissed the petition as successive pursuant to 28 U.S.C. § 2244(b)(3)(A). (See

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Order filed February 23, 2004 in case No. 04cv0292 W (JMA) [Doc. No. 2].) Petitioner

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did not appeal that determination.

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

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prior federal habeas petitions. Unless a petitioner shows he or she has obtained an Order

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from the appropriate court of appeals authorizing the district court to consider a

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successive petition, the petition may not be filed in the district court. See 28 U.S.C.

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§ 2244(b)(3)(A). Here, there is no indication the Ninth Circuit Court of Appeals has

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granted Petitioner leave to file a successive petition.

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CONCLUSION
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

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Court of Appeals. The Clerk of Court is directed to mail Petitioner a blank Application

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to File a Second or Successive Petition or Motion Under 28 U.S.C. § 2254 together

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with a copy of this Order.

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IT IS SO ORDERED.
Dated: March 23, 2016

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16-0639 GPC (MDD)