Foster v. CCI - Tehachapi et al

Filing 4

Summary Dismissal of Successive Petition Pursuant to 28 U.S.C. § 2244(b)(3)(A) Gatekeeper Provision. Signed by Judge Anthony J. Battaglia on 3/9/2017. (All non-registered users served via U.S. Mail Service) (Blank application for Leave to File a Second or Successive Petition under 28 U.S.C. § 2254 or § 2255 mailed to Petitioner) (fth)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DERRYL TYRONE FOSTER,

Case No.: 17cv0019-AJB (JLB)
Petitioner,

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

v.
KATHLEEN A. KENEALY, et al.,
Respondents.

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On January 3, 2017, Petitioner, a state prisoner proceeding pro se, filed a Petition

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for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner

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challenged the restitution order entered following his August 31, 2006, conviction in San

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Diego County Superior Court Case No. SCD195407. (Id.) On January 6, 2017, the Court

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granted Petitioner leave to proceed in forma pauperis but dismissed the Petition without

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prejudice because Petitioner had not alleged that he was in custody in violation of the

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Constitution or laws or treaties of the United States as required to confer jurisdiction in this

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Court over his petition. (ECF No. 2 at 2, citing Bailey v. Hill, 599 F.3d 976, 982 (9th Cir.

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2010) (stating that 28 U.S.C. § 2254(a) “does not confer jurisdiction over a state prisoner’s

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in-custody challenge to a restitution order imposed as part of a criminal sentence.”).)

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Petitioner was granted leave to a First Amended Petition. (ECF No. 3.)
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17cv0019-AJB (JLB)

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Petitioner has now filed a First Amended Petition in which he repeats his claim

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challenging his restitution order, but adds a claim alleging the trial judge was biased. (ECF

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No. 3 at 6.)

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PETITION BARRED BY GATEKEEPER PROVISION

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This is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to

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this Court challenging his August 31, 2006 conviction in San Diego County Superior Court

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Case No. SCD195407. On September 28, 2011, Petitioner filed in this Court a Petition for

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a Writ of Habeas Corpus in which he challenged his August 31, 2006 conviction in San

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Diego County Superior Court Case No. SCD195407. (See Pet. filed 9/28/11 [ECF No. 1]

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in So.Dist.Ca. Civil Case No. 11cv2270-LAB (WMC).) On August 26, 2013, this Court

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denied the petition on the basis that it was not filed within the one-year statute of limitations

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applicable to § 2254 habeas petitions. (See Order filed 8/26/13 [ECF No. 38] in So.Dist.Ca.

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Civil Case No. 11cv2270-LAB (WMC).) The Ninth Circuit Court of Appeals denied a

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Certificate of Appealability on November 20, 2013. (See ECF No. 42 in So.Dist.Ca. Civil

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Case No. 11cv2270-LAB (WMC).)

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Petitioner is now seeking to challenge the same conviction and sentence he

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challenged in his prior federal habeas petition. The prior dismissal of his previous petition

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for failure to comply with the one-year statute of limitations renders subsequent petitions

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challenging the same conviction or sentence “second or successive” under 2244(b).

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McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). Unless a petitioner shows he or

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she has obtained an Order from the appropriate court of appeals authorizing the district

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

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See 28 U.S.C. § 2244(b)(3)(A). Here, there is no indication the Ninth Circuit Court of

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Appeals has granted Petitioner leave to file a successive petition.

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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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17cv0019-AJB (JLB)

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

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Leave to File a Second or Successive Petition Under 28 U.S.C. § 2254 or § 2255 together

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with a copy of this Order.

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IT IS SO ORDERED.
Dated: March 9, 2017

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17cv0019-AJB (JLB)