Garces v. People of the State of California
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).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
LUIS MANUEL GARCES,
Case No. 17cv0816 LAB (AGS)
SUMMARY DISMISSAL OF
PURSUANT TO 28 U.S.C.
§ 2244(b)(3)(A) GATEKEEPER
PEOPLE OF CALIFORNIA,
Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C.
§ 2254. For the reasons discussed below, the case is summarily dismissed pursuant to 28
U.S.C. § 2244(b)(3)(A).
PETITION BARRED BY GATEKEEPER PROVISION
The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner
has submitted to this Court challenging his March 3, 2004 conviction in San Diego County
Superior Court case number SCD133238. On August 12, 2009, Petitioner filed a Petition
for Writ of Habeas Corpus in this Court, in case No. 09cv1767. In that petition, Petitioner
challenged his March 3, 2004 conviction as well. On June 9, 2011, this Court denied the
petition on the merits. (See Order filed June 7, 2011 in case No. 09cv1767 H (CAB) [ECF
No. 30].) Petitioner appealed that determination. On September 13, 2011 the Ninth Circuit
Court of Appeals denied Petitioner’s application to file a second or successive petition.
17cv0816 LAB (AGS)
(See Order in Garces v. Yates, No. 11-71887 (9th Cir. Sept. 13, 2011).)
Petitioner is now seeking to challenge the sentence imposed as a result the conviction
he challenged in his prior federal habeas petition. Unless a petitioner shows he or she has
obtained an Order from the appropriate court of appeals authorizing the district court to
consider a successive petition, the petition may not be filed in the district court. See 28
U.S.C. § 2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 153 (2007) (a petition
is successive where it challenges “the same custody imposed by the same judgment of a
state court” as a prior petition). A successive application is permissible “only if it rests on
a new rule of constitutional law, facts that were previously unavailable, or facts that would
be sufficient to show constitutional error in the petitioner's conviction.” 28 U.S.C.
§ 2244(b)(2). “Even if a petitioner can demonstrate that he qualifies for one of these
exceptions, he must seek authorization from the court of appeals before filing his new
petition with the district court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir.2008). Here,
there is no indication the Ninth Circuit Court of Appeals has granted Petitioner leave to file
a successive petition.
Because there is no indication Petitioner has obtained permission from the Ninth
Circuit Court of Appeals to file a successive petition, this Court cannot consider his
Petition. Accordingly, 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. For Petitioner’s convenience, the Clerk of Court shall attach a blank Ninth
Circuit Application for Leave to File Second or Successive Petition.
IT IS SO ORDERED.
DATED: May 2, 2017
Larry Alan Burns
United States District Judge
17cv0816 LAB (AGS)
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