UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
December 28, 2010
DIRECTOR OF THE CALIFORNIA DEPARTMENT OF CORRECTIONS, ET AL,
The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
Petitioner, Rodney Romero, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 together with a request for appointment of counsel. The Court does not rule on Petitioner's request for counsel because 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 April 15, 1997 conviction in San Diego Superior Court case No. SCN 048430. On August 2, 2000, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 00cv1535. In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCN 048430 as well. On February 4, 2002, this Court denied the petition on the merits. (See Order filed February 4, 2002 in case No. 00cv1535 IEG (JFS) [Doc. No. 30].) Petitioner appealed that determination. On April 21, 2003, the Ninth Circuit Court of Appeals affirmed the denial of the petition. (See Order in Romero v. Galaza, No. 02-55358 (9th Cir. May 20, 2003).) On October 13, 2010, the Ninth Circuit Court of Appeals denied Petitioner's application for authorization to file a second or successive 28 U.S.C. § 2254 petition. (See Order in Romero v. Neotti, No. 10-72278 (9th Cir. Oct. 13, 2010).)
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, the Ninth Circuit Court of Appeals has denied Petitioner's request to file a successive petition.
Because the Ninth Circuit Court of Appeals has not granted Petitioner leave to file a successive petition, this Court cannot consider his Petition. Accordingly, the Court DISMISSES this action without prejudice.
IT IS SO ORDERED.
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