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Vicks v. Noll

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


December 8, 2009

MICHAEL DEAN VICKS, PETITIONER,
v.
C. NOLL, ACTING WARDEN, RESPONDENT.

The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge United States District Court

SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION

Petitioner, Michael Dean Vicks, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. This case is summarily dismissed pursuant to 28 U.S.C. § 2244(b)(3)(A) as indicated below.

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 December 1983 conviction in San Diego Superior Court case No. CR 63419.

This is not the first habeas corpus petition Petitioner has filed in this Court challenging his conviction in case no. CR 63419. On April 23, 1992, Petitioner filed a habeas corpus petition in this Court challenging this same conviction, CR 63419, in case no. 92cv0622. On December 1, 1992, this Court denied that petition as successive to a previously filed petition in case no. 86-2069. (See Order filed Dec. 1, 1992 in case No. 92cv0622 H [Doc. No. 11].) Petitioner appealed that determination. On May 23, 1994, the Ninth Circuit Court of Appeals affirmed this Court's decision. (See Order in Vicks v. Ratelle, No. 93-55276 (9th Cir. May 23, 1994).)

Petitioner is now seeking to challenge the same conviction 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 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 COURT IS DIRECTED TO MAIL PETITIONER A BLANK NINTH CIRCUIT APPLICATION FOR LEAVE TO FILE A SECOND OR SUCCESSIVE PETITION TOGETHER WITH A COPY OF THIS ORDER.

IT IS SO ORDERED.

20091208

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