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Bates v. Smelosky

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


February 24, 2009

DAVID L. BATES, PETITIONER,
v.
MICHAEL A SMELOSKY, RESPONDENT.

The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

ORDER DISMISSING SECOND AND SUCCESSIVE HABEAS CORPUS PETITION

Before the Court is a petition for writ of habeas corpus in which Petitioner seeks to challenge a 2002 state conviction for possession of a firearm by a convicted felon and carrying a loaded and unregistered firearm on his person. This is Petitioner's second attempt to challenge this conviction. In 2005, Petitioner filed a habeas petition challenging this conviction, which was denied on its merits. See Bates v. Campbell, CV No. 05-602-DDP (Mc), December 2005 Order Adopting Report and Recommendation. The Ninth Circuit Court of Appeals later denied Petitioner's request for a certificate of appealability. See Bates v. Campbell, CCA No. 06-55650, March 27, 2007 Order.

Because Petitioner has already brought a habeas petition challenging this same 2002 conviction, the current Petition is subject to dismissal as being second and successive. See 28 U.S.C. § 2244. Absent an order from the appellate court, this Court does not have jurisdiction to entertain a second or successive petition. See 28 U.S.C. § 2244(b)(3)(A). For this reason, the Petition is dismissed.

IT IS SO ORDERED.

Presented by: PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE

20090224

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