UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA
March 3, 2011
KELLY HARRINGTON, ET AL.,
The opinion of the court was delivered by: John A. HoustonUnited States District Judge
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT
TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
Petitioner, Alexander Valentine, a state prisoner proceeding with counsel, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 and has paid the $5.00 filing fee. 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 March 17, 1998 conviction in San Diego Superior Court case No. SCD 122660. On April 18, 2001, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 01cv0681. In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCD 122660 as well. On January 7, 2004, this Court conditionally granting the petition on the merits. (See Order filed Jan. 7, 2004 in case No. 01cv0681 J (RBB) [Doc. No. 27].) Both Petitioner and Respondent appealed that determination. On November 7, 2005, the Ninth Circuit Court of Appeals reversed in part and affirmed in part this Court's decision. (See Order in Valentine v. Giurbino, Nos. 04-55208 and 0455365 (9th Cir. Nov. 7, 2005).)
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, 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. The Clerk of Court is directed to mail Petitioner a blank Application for Leave to File Second or Successive Petition or Motion Under 28 U.S.C. § 2254.
IT IS SO ORDERED.
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