Garces v. The People of the State of California
Filing
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Summary Dismissal of Successive Petition. 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 shall attach a blank Ninth Circuit Application for Leave to File Second or Successive Petition. Signed by Judge Gonzalo P. Curiel on 5/4/17.(All non-registered users served via U.S. Mail Service) (Ninth Circuit Application mailed to petitioner)(dlg)
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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LUIS MANUEL GARCES,
Case No. 17cv0598 GPC (KSC)
Plaintiff,
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SUMMARY DISMISSAL OF
SUCCESSIVE PETITION
PURSUANT TO 28 U.S.C.
§ 2244(b)(3)(A) GATEKEEPER
PROVISION
v.
PEOPLE OF CALIFORNIA,
Respondent.
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Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
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§ 2254. For the reasons discussed below, the case is summarily dismissed pursuant to 28
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U.S.C. § 2244(b)(3)(A).
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 March 3, 2004 conviction in San Diego County
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Superior Court case number SCD133238. On August 12, 2009, Petitioner filed a Petition
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for Writ of Habeas Corpus in this Court, in case No. 09cv1767. In that petition, Petitioner
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challenged his March 3, 2004 conviction as well. On June 9, 2011, this Court denied the
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petition on the merits. (See Order filed June 7, 2011 in case No. 09cv1767 H (CAB) [ECF
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No. 30].) On September 13, 2011 the Ninth Circuit Court of Appeals denied Petitioner’s
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17cv0598 GPC (KSC)
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application to file a second or successive petition. (See Order in Garces v. Yates, No. 11-
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71887 (9th Cir. Sept. 13, 2011).)
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Petitioner is now seeking to challenge the sentence imposed as a result of the
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conviction he challenged in his prior federal habeas petition. Unless a petitioner shows he
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or 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); see also Burton v. Stewart, 549 U.S. 147, 153 (2007) (a
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petition is successive where it challenges “the same custody imposed by the same judgment
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of a state court” as a prior petition). A successive application is permissible “only if it rests
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on a new rule of constitutional law, facts that were previously unavailable, or facts that
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would be sufficient to show constitutional error in the petitioner's conviction.” 28 U.S.C.
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§ 2244(b)(2). “Even if a petitioner can demonstrate that he qualifies for one of these
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exceptions, he must seek authorization from the court of appeals before filing his new
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petition with the district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir.2008). Here,
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there is no indication the Ninth Circuit Court of Appeals has granted Petitioner leave to file
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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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filing a petition in this Court if he obtains the necessary order from the Ninth Circuit Court
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of Appeals. For Petitioner’s convenience, the Clerk of Court shall attach a blank Ninth
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Circuit Application for Leave to File Second or Successive Petition.
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IT IS SO ORDERED.
Dated: May 4, 2017
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17cv0598 GPC (KSC)
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