Booth v. Gastelo

Filing 2

Summary Dismissal of Successive Petition Pursuant to 28. U.S.C. § 2244(b)(3)(A)Gatekeeper Provision. Signed by Judge Cathy Ann Bencivengo on 7/15/2021.(All non-registered users served via U.S. Mail Service)(Ninth Circuit Application for Leave to File Second or SuccessivePetition mailed with order)(anh)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 EDWARD BOOTH, Case No. 3:21-cv-1259-CAB-DEB Petitioner, 12 13 14 SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION v. J. GASTELO, Warden Respondent. 15 16 17 Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 18 § 2254. For the reasons discussed below, this case is summarily dismissed pursuant to 28 19 U.S.C. § 2244(b)(3)(A). 20 PETITION BARRED BY GATEKEEPER PROVISION 21 The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner 22 has submitted to this Court challenging his 2005 conviction in Imperial County Superior 23 Court case number JCF14228. On November 15, 2010, Petitioner filed in this Court a 24 Petition for Writ of Habeas Corpus in case No. 3:10-cv-2361-JLS-MDD. (See Petition in 25 SO. DIST. CA. CIVIL CASE NO. 3:10-cv-2361-JLS-MDD, ECF No. 1.) In that petition, 26 Petitioner challenged his 2005 conviction in Imperial County Superior Court case number 27 JCF14228 as well. (See id. at 1–2.) On September 2, 2011, this Court dismissed the 28 petition with prejudice because it had been filed after the expiration of the one-year 1 3:21-cv-1259-CAB-DEB 1 statute of limitations and the claims were procedurally defaulted. (See Order filed Nov. 2, 2 2011 in case No. 3:10-cv-2361-JLS-MDD, ECF No. 14.) Petitioner appealed that 3 determination. On March 29, 2012, the Ninth Circuit Court of Appeals denied 4 Petitioner’s request for certificate of appealability. (See Order in Booth v. Adams, No. 12- 5 55433 (9th Cir. Mar. 29, 2012), ECF No. 27.) 6 Petitioner is now seeking to challenge the same conviction he challenged in his 7 prior federal habeas petition. Unless a petitioner shows he or she has obtained an Order 8 from the appropriate court of appeals authorizing the district court to consider a 9 successive petition, the petition may not be filed in the district court. See 28 U.S.C. 10 § 2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 153 (2007) (stating a petition 11 is successive where it challenges “the same custody imposed by the same judgment of a 12 state court” as a prior petition); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir. 13 2005) (stating the dismissal with prejudice because of a procedural default “constitutes a 14 disposition on the merits and renders a subsequent petition second or successive for 15 purposes of 28 U.S.C. § 2244(b)”); McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 16 2009) (“We therefore hold that dismissal of a section 2254 habeas petition for failure to 17 comply with the statute of limitations renders subsequent petitions second or successive 18 for purposes of the AEDPA, 28 U.S.C. § 2244(b).”) A successive application is permissible “only if it rests on a new rule of 19 20 constitutional law, facts that were previously unavailable, or facts that would be sufficient 21 to show constitutional error in the petitioner's conviction.” 28 U.S.C. § 2244(b)(2). “Even 22 if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek 23 authorization from the court of appeals before filing his new petition with the district 24 court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). Here, there is no indication 25 the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive 26 petition. 27 /// 28 /// 2 3:21-cv-1259-CAB-DEB 1 2 CONCLUSION Because there is no indication Petitioner has obtained permission from the Ninth 3 Circuit Court of Appeals to file a successive petition, this Court cannot consider his 4 Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner 5 filing a petition in this court if he obtains the necessary order from the Ninth Circuit 6 Court of Appeals. Further, because Petitioner has failed to make “a substantial showing 7 of the denial of a constitutional right,” and reasonable jurists would not find debatable 8 this Court’s assessment of his claims, the Court DENIES a certificate of appealability. 9 See 28 U.S.C. § 2253(c); see also Rules Governing § 2254 Cases, Rule 11(a) (requiring 10 the district court that issues an order denying a habeas petition to either grant or deny a 11 certificate of appealability). For Petitioner’s convenience, the Clerk of Court shall 12 attach a blank Ninth Circuit Application for Leave to File Second or Successive 13 Petition. 14 15 IT IS SO ORDERED. Dated: July 15, 2021 16 17 18 19 20 21 22 23 24 25 26 27 28 3 3:21-cv-1259-CAB-DEB

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