UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
November 9, 2009
JAMES MCNEIL, PETITIONER,
J. WALKER, WARDEN, RESPONDENT.
The opinion of the court was delivered by: William Q. Hayes United States District Judge
ORDER DISMISSING HABEAS PETITION WITHOUT PREJUDICE AS SECOND OR SUCCESSIVE
On October 19, 2009, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. In this action Petitioner is challenging his March 29, 2000 San Diego County Superior Court conviction and sentence for indecent exposure in case number SCD147489. (See Petition at 2.)
PRIOR FEDERAL HABEAS PETITIONS DENIED ON THE MERITS
The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to this Court challenging his March 29, 2000 conviction in San Diego Superior Court. On September 27, 2005, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in SO. DIST. CA. CIVIL CASE NO. 05cv1852. (See Petition in SO. DIST. CA. CIVIL CASE NO. 05cv1852 J (PCL), filed 9/27/05.). In that petition, Petitioner challenged his conviction and sentence in San Diego Superior Court case No. SCD-147486. (Id. at 3.) On August 31, 2005, this Court dismissed the petition because it had been filed well after the expiration of the one-year statute of limitations. (See Order filed 8/31/05 in SO. DIST. CA. CIVIL CASE NO. 05cv1852 J (PCL).)
Petitioner has not appealed that determination.
INSTANT PETITION BARRED BY GATEKEEPER PROVISION
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); Murray v. Greiner, 394 F.3d 78 (2d Cir. 2005) (holding that dismissal for failure to comply with one-year statute of limitations renders subsequent petitions challenging the same conviction or sentence "second or successive" under 2244(b)); Reyes v. Vaughn, 276 F.Supp.2d 1027, 1029 (C. D. Cal. 2003) (same). Here, there is no indication the Ninth Circuit Court of Appeals has granted Petitioner leave to file a successive petition.
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. For Petitioner's convenience, the Clerk of Court shall attach to this Order a blank Ninth Circuit Application for Leave to File Second or Successive Petition.)
The Clerk shall close the file.
IT IS SO ORDERED.
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