Agnew v. Kernan

Filing 3

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 John A. Houston on 9/12/16. (All non-registered users served via U.S. Mail Service)(form mailed to petitioner)(kas)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No.: 16-2251 JAH (KSC) JILBRAUN D. AGNEW, Petitioner, 12 13 v. 14 SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION SCOTT KERNAN, Secretary et al., 15 16 Respondents. 17 Petitioner, Jilbraun D. Agnew, a state prisoner proceeding pro se, has filed a 18 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 together with a request 19 to proceed in forma pauperis. The Court does not rule on Petitioner’s request to proceed 20 in forma pauperis because this case is summarily dismissed pursuant to 28 U.S.C. 21 § 2244(b)(3)(A) as indicated below. 22 PETITION BARRED BY GATEKEEPER PROVISION 23 The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner 24 has submitted to this Court challenging his December 17, 2009 conviction in San Diego 25 Superior Court case No. SCD220189. On April 11, 2011, Petitioner filed in this Court a 26 27 28 1 16-2251 JAH (KSC) 1 Petition for Writ of Habeas Corpus in case No. 11cv0757 RBB.1 In that petition, 2 Petitioner challenged his conviction in San Diego Superior Court case No. SCD220189 3 as well. On September 4, 2012, this Court denied the petition on the merits. (See Order 4 filed Sept. 4, 2012 in case No. 11cv0757 RBB [Doc. No. 12].) Petitioner appealed that 5 determination. On February 7, 2014, the Ninth Circuit Court of Appeals denied 6 Petitioner’s request for a certificate of appealability. (See Order in Agnew v. Cate, No. 7 12-57335 (9th Cir. Feb. 7, 2012).) 8 9 Petitioner is now seeking to challenge the same conviction he challenged in his prior federal habeas petition. Unless a petitioner shows he or she has obtained an Order 10 from the appropriate court of appeals authorizing the district court to consider a 11 successive petition, the petition may not be filed in the district court. See 28 U.S.C. 12 § 2244(b)(3)(A). Here, there is no indication the Ninth Circuit Court of Appeals has 13 granted Petitioner leave to file a successive petition. 14 CONCLUSION 15 Because there is no indication Petitioner has obtained permission from the Ninth 16 Circuit Court of Appeals to file a successive petition, this Court cannot consider his 17 Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner 18 filing a petition in this court if he obtains the necessary order from the Ninth Circuit 19 Court of Appeals. The Clerk of Court shall mail Petitioner a blank Application for 20 Leave to File Second Or Successive Petition or Motion Under 28 U.S.C. § 2254 OR 21 § 2255 together with a copy of the Order. 22 IT IS SO ORDERED. 23 DATED: September 12, 2016 24 _________________________________________ John A. Houston United States District Judge 25 26 27                                                 28 1 The parties consented to Magistrate Judge jurisdiction in case no. 11cv0757 RBB. 2 16-2251 JAH (KSC)

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