The opinion of the court was delivered by: ANTHONY BATTAGLIA, Magistrate Judge
Report and Recommendation Granting Motion to Dismiss [Doc. No. 9]
Petitioner Richard William Stewart, a state prisoner proceeding
pro se, filed a Petition for a Writ of Habeas Corpus pursuant to
28 U.S.C. § 2254. Respondent filed a Motion to Dismiss, but the
Petitioner has failed to file an Opposition to Respondents
Motion. The instant Petition is not the first Petition for Writ
of Habeas Corpus Stewart has submitted to this Court challenging
his February 2, 1999, conviction in San Diego County Superior
Court Case No. SCD138543 for the unlawful taking of a vehicle.
Prior Federal Habeas Petitions Denied on the Merits
On June 6, 2002, Petitioner challenged this same conviction in
a habeas petition under 28 U.S.C. § 2254, which was denied by
this Court on the merits on April 23, 2004. See Stewart v. A.
Lamarque, et al., case no. 02cv1104 H (BEN). On July 28, 2004,
Stewart filed another Habeas Petition in this Court, raising the same issues as those contained in his 2002 Petition.
The Court dismissed this Petition as successive on August 5,
2004. See Stewart v. Caden, Warden, case no. 04cv1627 J (WMC)
(citing the Order filed August 5, 2004, in case no. 04cv1521BEN
(WMC). The instant Petition is challenging the same February 2,
1999, conviction as the previous Petitions.
Instant Petition Is Barred By Gatekeeper Provision
Section 2244(b)(1) provides that where a claim is presented in
a second or success habeas corpus petition under section 2254
that has been presented in a prior application, that claim shall
be dismissed. 28 U.S.C. § 2244(b)(1). This section applies to bar
a second or successive petition even where the first petition was
dismissed as time-barred. Reyes v. Vaughn,
276 F. Supp. 2d 1027, 1029 (C.D. Cal. 2003).
Since the Petition seeks to challenge the same conviction he
challenged in his prior Federal Habeas Petitions, the Petitioner
must show that he has obtained an order from the appropriate
Court of Appeal authoring the District Court to consider a
successive petition. See 28 U.S.C. § 2244(b)(3)(A). Until such
time as the Petitioner obtains an order from the Ninth Circuit
Court of Appeal granting the Petitioner leave to file a
successive petition, his Habeas Petition may not be filed or
considered by the District Court. There is no indication in the
record that the Petitioner was granted leave by the Ninth Circuit
to file the instant Petition. On the contrary, Petitioner
indicates on page five of his First Amended Petition for Writ of
Habeas Corpus that he was not given permission by the Ninth
Circuit to file this second or successive Petition. As such, the
Court cannot consider the instant Petition.
For the reasons set forth above, the Court hereby recommends
that Respondent's Motion to Dismiss pursuant 28 U.S.C. § 2244(b)
be GRANTED without prejudice to Stewart filing a petition in this
Court after he first obtains the necessary order from the Ninth
Circuit Court of Appeal granting him leave to file a successive
This report and recommendation will be submitted to the United
States District Judge assigned to this case, pursuant to the
provisions of 28 U.S.C. § 636(b)(1). Any party may file written
objections with the court and serve a copy on all parties by
October 24, 2005. The document should be captioned "Objections
to Report and Recommendation." Any reply to the objections shall
be served and filed by November 7, 2005. The parties are advised that failure to file
objections within the specified time may waive the right to raise
those objections on appeal of the Court's order. Martinez v.
Ylst, 951 F.2d 1153 (9th Cir. 1991).
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