The opinion of the court was delivered by: Hon. Napoleon A. Jones, Jr. United States District Judge
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
Petitioner, Michael Edward Equels, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
PETITION BARRED BY GATEKEEPER PROVISION
The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to this Court challenging his June 16, 1994, conviction in San Diego Superior Court case No. SCN 143084. On October 20, 1998, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 98cv1902. In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCN 143084 as well. On April 23, 1999, this Court denied the petition on the merits. (See Order filed April 23, 1999 in case No. 98cv1902 K (LAB) [Doc. No. 17].) Petitioner appealed that determination. On July 28, 2000, the Ninth Circuit Court of Appeals dismissed the appeal and affirmed this Court's decision. (See Order in Equels v. Hubbard, No. 99-56456 (9th Cir. July 28, 2000).)
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)(3)(A). Here, there is no indication the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive petition. Furthermore, Petitioner argues that he is entitled to relief under the recently decided United States Supreme Court case Cunningham v. California, 127 S.Ct. 856 (2007). However, Petitioner has not demonstrated that his "claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable" as required under section 2244(b)(2)(A). 28 U.S.C. § 2244(b)(2)(A).
Because there is no indication Petitioner has obtained permission from the Ninth Circuit Court of Appeals to file a successive petition, nor that Cunningham v. California may be retroactively applied to his claim, this Court cannot consider his Petition. Accordingly, the Court DISMISSES this action without prejudice
© 1992-2007 VersusLaw ...