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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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DERRYL TYRONE FOSTER, Case No.: 17cv0019-AJB (JLB) Petitioner, 12 13 14 SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION v. KATHLEEN A. KENEALY, et al., Respondents. 15 16 17 18 On January 3, 2017, Petitioner, a state prisoner proceeding pro se, filed a Petition 19 for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. (ECF No. 1.) Petitioner 20 challenged the restitution order entered following his August 31, 2006, conviction in San 21 Diego County Superior Court Case No. SCD195407. (Id.) On January 6, 2017, the Court 22 granted Petitioner leave to proceed in forma pauperis but dismissed the Petition without 23 prejudice because Petitioner had not alleged that he was in custody in violation of the 24 Constitution or laws or treaties of the United States as required to confer jurisdiction in this 25 Court over his petition. (ECF No. 2 at 2, citing Bailey v. Hill, 599 F.3d 976, 982 (9th Cir. 26 2010) (stating that 28 U.S.C. § 2254(a) “does not confer jurisdiction over a state prisoner’s 27 in-custody challenge to a restitution order imposed as part of a criminal sentence.”).) 28 Petitioner was granted leave to a First Amended Petition. (ECF No. 3.) 1 17cv0019-AJB (JLB) 1 Petitioner has now filed a First Amended Petition in which he repeats his claim 2 challenging his restitution order, but adds a claim alleging the trial judge was biased. (ECF 3 No. 3 at 6.) 4 PETITION BARRED BY GATEKEEPER PROVISION 5 This is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to 6 this Court challenging his August 31, 2006 conviction in San Diego County Superior Court 7 Case No. SCD195407. On September 28, 2011, Petitioner filed in this Court a Petition for 8 a Writ of Habeas Corpus in which he challenged his August 31, 2006 conviction in San 9 Diego County Superior Court Case No. SCD195407. (See Pet. filed 9/28/11 [ECF No. 1] 10 in So.Dist.Ca. Civil Case No. 11cv2270-LAB (WMC).) On August 26, 2013, this Court 11 denied the petition on the basis that it was not filed within the one-year statute of limitations 12 applicable to § 2254 habeas petitions. (See Order filed 8/26/13 [ECF No. 38] in So.Dist.Ca. 13 Civil Case No. 11cv2270-LAB (WMC).) The Ninth Circuit Court of Appeals denied a 14 Certificate of Appealability on November 20, 2013. (See ECF No. 42 in So.Dist.Ca. Civil 15 Case No. 11cv2270-LAB (WMC).) 16 Petitioner is now seeking to challenge the same conviction and sentence he 17 challenged in his prior federal habeas petition. The prior dismissal of his previous petition 18 for failure to comply with the one-year statute of limitations renders subsequent petitions 19 challenging the same conviction or sentence “second or successive” under 2244(b). 20 McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). Unless a petitioner shows he or 21 she has obtained an Order from the appropriate court of appeals authorizing the district 22 court to consider a successive petition, the petition may not be filed in the district court. 23 See 28 U.S.C. § 2244(b)(3)(A). Here, there is no indication the Ninth Circuit Court of 24 Appeals has granted Petitioner leave to file a successive petition. 25 CONCLUSION 26 Because there is no indication Petitioner has obtained permission from the Ninth 27 Circuit Court of Appeals to file a successive petition, this Court cannot consider his 28 Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner 2 17cv0019-AJB (JLB) 1 filing a petition in this court if he obtains the necessary order from the Ninth Circuit Court 2 of Appeals. The Clerk of Court is directed to mail Petitioner a blank Application for 3 Leave to File a Second or Successive Petition Under 28 U.S.C. § 2254 or § 2255 together 4 with a copy of this Order. 5 6 IT IS SO ORDERED. Dated: March 9, 2017 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 17cv0019-AJB (JLB)

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