Garces v. People of the State of California

Filing 2

Summary Dismissal of Successive Petition Pursuant to 29 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 Nin th Circuit Court of Appeals. Signed by Judge Larry Alan Burns on 5/2/2017. (Ninth Circuit Application for Leave to File Second or Successive Petition and Order mailed to Petitioner) (All non-registered users served via U.S. Mail Service) (lrf) (sjt).

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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. 17cv0816 LAB (AGS)
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).

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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 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].) Petitioner appealed that determination. On September 13, 2011 the Ninth Circuit

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Court of Appeals denied Petitioner’s application to file a second or successive petition.
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17cv0816 LAB (AGS)

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(See Order in Garces v. Yates, No. 11-71887 (9th Cir. Sept. 13, 2011).)

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Petitioner is now seeking to challenge the sentence imposed as a result the conviction

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he challenged in his prior federal habeas petition. Unless a petitioner shows he or she has

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obtained an Order from the appropriate court of appeals authorizing the district court to

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consider a successive petition, the petition may not be filed in the district court. See 28

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U.S.C. § 2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 153 (2007) (a petition

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is successive where it challenges “the same custody imposed by the same judgment of a

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state court” as a prior petition). A successive application is permissible “only if it rests on

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a new rule of constitutional law, facts that were previously unavailable, or facts that would

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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 2, 2017

_________________________________
Larry Alan Burns
United States District Judge

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17cv0816 LAB (AGS)