The opinion of the court was delivered by: M. James Lorenz United States District Court Judge
SUMMARY DISMISSAL OF SECOND GATEKEEPER PROVISION OR SUCCESSIVE PETITION PERSUANT TO 28 U.S.C. § 2244(b)(3)(A)
Petitioner Alfredo Purata, a state prisoner proceeding pro se, has submitted a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, together with a request to proceed in forma pauperis. The Court does not rule on Petitioner's application to proceed in forma pauperis because this case is summarily dismissed pursuant to 28 U.S.C. § 2244(b)(3)(A) as indicated below.
PRIOR FEDERAL HABEAS PETITIONS FILED BY PETITIONER
The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to this Court challenging his August 10, 1994 conviction in San Diego Superior Court Case No. SCD103277.
On May 14, 2008, Petitioner filed in this Court a Petition for a Writ of Habeas Corpus in SOUTHERN DISTRICT CA. CIVIL CASE NO. 08cv0869-IEG (WMc). In that petition, Petitioner challenged his August 10, 1994 conviction in San Diego Superior Court case No. SCD103277. On August 26, 2008, this Court dismissed the petition on the basis that it was second or successive to a petition which had been denied on the merits in SOUTHERN DISTRICT CA. CIVIL CASE NO. 02cv1478-BTM (JAH). (See Order filed Aug. 26, 2008 [Doc. No. 10] in SOUTHERN DISTRICT CA. CIVIL CASE NO. 08cv0869-IEG (WMc).) The dismissal was without prejudice to Petitioner to request permission from the Ninth Circuit Court of Appeals to proceed with a second or successive petition. (Id.)
INSTANT PETITION BARRED BY GATEKEEPER PROVISION
Petitioner is now seeking to challenge the same conviction and sentence he challenged in his prior federal habeas petitions. Unless a petitioner shows he or she has obtained an order from the appropriate court of appeals authorizing the district court to consider a second or successive petition, the petition may not be filed in the district court. See 28 U.S.C. § 2244(b)(3)(A). Here, Petitioner submits an Order from the Ninth Circuit Court of Appeals filed on December 1, 2008, denying him permission to file a second or successive petition in the district court. (Pet. Ex. B.) Although Petitioner contends the claim presented in the instant Petition is "different in scope" than the claims raised in his previous petition, they appear to be identical. (Compare Petition at 6 with Petition filed on May 14, 2008 in SOUTHERN DISTRICT CA. CIVIL CASE NO. 08cv0869-IEG (WMc).) In any case, the issue presented, that Petitioner's federal Constitutional rights were violated by the imposition of consecutive rather than concurrent sentences, is foreclosed by the recent decision of the United States Supreme Court in Oregon v. Ice, 555 U.S. ___, No. 07-901 (Jan. 14, 2009).
Because Petitioner has failed to obtain permission from the Ninth Circuit Court of Appeals to file a second or successive petition, this Court cannot consider his Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner's filing a petition in this court if he obtains the necessary order from the Ninth Circuit Court of Appeals.
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