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Dulaney v. Marshall

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 17, 2008

ROZELL DULANEY, PETITIONER,
v.
JOHN MARSHALL, DIRECTOR, ET AL., RESPONDENTS.

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, Rozell Dulaney, 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 that Petitioner has submitted to this Court challenging his conviction in San Diego Superior Court case No. SCD137017. Thus, this case is summarily dismissed pursuant to 28 U.S.C. § 2244(b)(3)(A) as indicated below.

PETITION BARRED BY GATEKEEPER PROVISION

On February 27, 2001, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 01cv0344. In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCD 137017. On December 3, 2001, this Court denied the petition on the merits. (See Order filed December 3, 2001in case No. 01cv0344 J (NLS) [Doc. No. 13].) Petitioner filed a motion for rehearing with the Ninth Circuit Court of Appeals which was construed by the court as a request for a certificate of appealability. On January 10, 2003, the Ninth Circuit Court of Appeals denied the motion. (See Order in Dulaney v. Roe, No. 02-55167 (9th Cir. Jan. 10, 2003).)

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.

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.The Clerk of the Court is directed to attach a blank Ninth Circuit Application for Leave to File Second or Successive Petition for Petitioner's convenience.

IT IS SO ORDERED.

20080317

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