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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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EDWARD BOOTH,

Case No. 3:21-cv-1259-CAB-DEB
Petitioner,

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SUMMARY DISMISSAL OF
SUCCESSIVE PETITION
PURSUANT TO 28 U.S.C.
§ 2244(b)(3)(A) GATEKEEPER
PROVISION

v.
J. GASTELO, Warden
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, this 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 2005 conviction in Imperial County Superior

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Court case number JCF14228. On November 15, 2010, Petitioner filed in this Court a

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Petition for Writ of Habeas Corpus in case No. 3:10-cv-2361-JLS-MDD. (See Petition in

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SO. DIST. CA. CIVIL CASE NO. 3:10-cv-2361-JLS-MDD, ECF No. 1.) In that petition,

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Petitioner challenged his 2005 conviction in Imperial County Superior Court case number

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JCF14228 as well. (See id. at 1–2.) On September 2, 2011, this Court dismissed the

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petition with prejudice because it had been filed after the expiration of the one-year
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3:21-cv-1259-CAB-DEB

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statute of limitations and the claims were procedurally defaulted. (See Order filed Nov. 2,

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2011 in case No. 3:10-cv-2361-JLS-MDD, ECF No. 14.) Petitioner appealed that

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determination. On March 29, 2012, the Ninth Circuit Court of Appeals denied

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Petitioner’s request for certificate of appealability. (See Order in Booth v. Adams, No. 12-

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55433 (9th Cir. Mar. 29, 2012), ECF No. 27.)

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Petitioner is now seeking to challenge the same conviction he challenged in his

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prior federal habeas petition. Unless a petitioner shows he or she has obtained an Order

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from the appropriate court of appeals authorizing the district court to consider a

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successive petition, the petition may not be filed in the district court. See 28 U.S.C.

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§ 2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 153 (2007) (stating 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); Henderson v. Lampert, 396 F.3d 1049, 1053 (9th Cir.

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2005) (stating the dismissal with prejudice because of a procedural default “constitutes a

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disposition on the merits and renders a subsequent petition second or successive for

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purposes of 28 U.S.C. § 2244(b)”); McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir.

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2009) (“We therefore hold that dismissal of a section 2254 habeas petition for failure to

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comply with the statute of limitations renders subsequent petitions second or successive

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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

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constitutional law, facts that were previously unavailable, or facts that would be sufficient

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to show constitutional error in the petitioner's conviction.” 28 U.S.C. § 2244(b)(2). “Even

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if a petitioner can demonstrate that he qualifies for one of these exceptions, he must seek

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authorization from the court of appeals before filing his new petition with the district

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court.” Woods v. Carey, 525 F.3d 886, 888 (9th Cir. 2008). Here, there is no indication

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the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive

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petition.

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3:21-cv-1259-CAB-DEB

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CONCLUSION
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

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Court of Appeals. Further, because Petitioner has failed to make “a substantial showing

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of the denial of a constitutional right,” and reasonable jurists would not find debatable

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this Court’s assessment of his claims, the Court DENIES a certificate of appealability.

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See 28 U.S.C. § 2253(c); see also Rules Governing § 2254 Cases, Rule 11(a) (requiring

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the district court that issues an order denying a habeas petition to either grant or deny a

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certificate of appealability). For Petitioner’s convenience, the Clerk of Court shall

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attach a blank Ninth Circuit Application for Leave to File Second or Successive

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Petition.

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IT IS SO ORDERED.
Dated: July 15, 2021

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