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THOMPSON v. HERNANDEZ

United States District Court, S.D. California


September 22, 2005.

JOSEPH E. THOMPSON, Petitioner,
v.
ROBERT J. HERNANDEZ, Warden, Respondent.

The opinion of the court was delivered by: JAMES LORENZ, District Judge

SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
Petitioner Joseph E. Thompson, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to this Court challenging his September 1996 conviction in San Diego Superior Court case No. SCD 109348.

PRIOR FEDERAL HABEAS PETITIONS DENIED ON THE MERITS

  On November 8, 2000, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in Case No. 00cv2256-K. In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCD 109348. (See Pet. filed 11/8/00 in Case No. 00cv2256-K at 1.) On September 20, 2001, this Court denied the petition on the merits. (See Order filed 9/20/01 in Case No. 00cv2256-K.) Petitioner appealed that determination. On December 13, 2002, the Ninth Circuit Court of Appeals affirmed the denial of the petition. (See Doc. No. 81 in Case No. 00cv2256-K.) INSTANT PETITION BARRED BY GATEKEEPER PROVISION

  Petitioner is now contending that was denied his due process right to have an unbiased mental competency determination and his right not to be convicted of a crime at a time when he was not mentally competent. (Pet. at 6.) Petitioner acknowledges that he has filed a prior federal habeas petition challenging the same conviction in this Court Case No. 00cv2256-K. (Id. at 5.) He contends, however, that he discovered the factual predicate of his new claim in 2004, based on subsequent doctor's evaluations. (Pet. at 6.)

  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). Here, there is no indication the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive petition. Rather, Petitioner specifically acknowledges that he has received no such permission. (Pet. at 5.) Although Petitioner contends the factual predicate of the current claim was only recently discovered, he must nevertheless obtain permission from the Ninth Circuit Court of Appeals before this Court can consider his claim. 28 U.S.C. § 2244(b)(3)(A).

  CONCLUSION

  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. (Attached for Petitioner's convenience is a blank Ninth Circuit Application for Leave to File Second or Successive Petition.)

  IT IS SO ORDERED.

20050922

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