Miller v. Sherman
ORDER dismissing Habeas Petition without prejudice as second or successive. (blank Ninth Circuit Application for Leave to File Second or Successive Petition mailed to Petitioner). Signed by Judge John A. Houston on 7/10/2017.(All non-registered users served via U.S. Mail Service)(jpp) (sjt).
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
HUTTON F. MILLER,
Case No.: 17cv1323 JAH (JLB)
ORDER DISMISSING HABEAS
PETITION WITHOUT PREJUDICE
AS SECOND OR SUCCESSIVE
STU SHERMAN, Warden,
On June 28, 2017 Petitioner, a state prisoner proceeding pro se, filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. In this action Petitioner is
challenging his October 26, 1999, San Diego County Superior Court conviction and
sentence in Case No. SCE195569. (ECF No. 1 at 1.)
PRIOR FEDERAL HABEAS PETITIONS DENIED ON THE MERITS
On June 20, 2008, Petitioner filed in this Court a Petition for Writ of Habeas
Corpus in So. Dist. Ca. Civil Case No. 08cv1093 BEN (POR). (See Petition in So. Dist.
Ca. Civil Case No. 08cv1093 BEN (POR), ECF No. 1.) In that petition, Petitioner also
challenged his conviction and sentence in San Diego Superior Court case No.
SCE195569. On May 27, 2010, this Court dismissed the petition because it had been
filed after the expiration of the one-year statute of limitations. (See Order filed 5/27/10 in
17cv1323 JAH (JLB)
So. Dist. Ca. Civil Case No. 08cv1093 BEN (POR), ECF No. 40.) Petitioner did not
appeal that decision.
INSTANT PETITION BARRED BY GATEKEEPER PROVISION
Petitioner is now seeking to challenge the same 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); McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009) (holding that dismissal
for failure to comply with one-year statute of limitations renders subsequent petitions
challenging the same conviction or sentence “second or successive” under 2244(b)).
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. The Clerk of Court is directed to mail Petitioner a blank Ninth
Circuit Application for Leave to File Second or Successive Petition together with a
copy of this Order.
IT IS SO ORDERED.
DATED: July 10, 2017
John A. Houston
United States District Judge
17cv1323 JAH (JLB)
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