George v. People of the State of California

Filing 8

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. The Clerk of Court is directed to mail Petitioner a blank Application for Leave to File a Second or Successive Petition or Motion Pursuant to 28 U.S.c. 2254 or 2255 together with a copy ofthis Order. Signed by Judge Roger T. Benitez on 12/7/16. (All non-registered users served via U.S. Mail Service)(appl mailed to petitioner along with Order(kas) (jao).

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FILED

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16 DEC -8 PM Is 3'

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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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Case No.: 16cv2578 BEN (PCL)
Petitioner,

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v.

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KELL Y SANTORO,

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Respondent.

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

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

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Amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This case is

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summarily dismissed pursuant to 28 U.S.C. § 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 November 22, 2005 conviction in San Diego

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Superior Court case No. SCD 179831. On November 19,2007, Petitioner filed in this

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Court a Petition for Writ of Habeas Corpus in case No. 07cv2215 J (POR). In that

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petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCD

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179831 as welL On September 24,2009, this Court denied the petition on the merits.

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(See Order filed Sept. 24, 2009 in case No. 07cv2215 J (POR) [Doc. No. 25].) Petitioner

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appealed that determination. On June 2, 2011, the Ninth Circuit Court of Appeals

1nev7'\7R RFN (peT)

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1 affirmed this Court's deniaL (See Order in George v. Almager, No. 09-56835 (9th Cir.
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June 11, 2009).)1
Petitioner is now seeking to challenge the same conviction he challenged in his

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prior federal habeas petition. 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 ofCourt is directed to mail Petitioner a blank Application

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IT IS SO ORDERED.

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DATED: December0016

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Uni d States District Judge

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1 Petitioner

has filed three other petitions in this Court which have been denied as successive, 12cv0790
LAB (WVG), 12cv2376 CAB (RBB), and 13cv0555 AlB (NLS).
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