The opinion of the court was delivered by: Honorablelarryalan Burns United States District Judge
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
On May 20, 2011, Petitioner, Christopher Leon Baker, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254.
PETITION BARRED BY GATEKEEPER PROVISION
The instant First Amended Petition is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to this Court challenging his February 1, 2000 conviction in San Diego Superior Court case No. SDC 146719. On July 30, 2004, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 04cv1533. In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SDC 146719 as well. On July 25, 2007, this Court denied the petition on the merits. (See Order filed July 25, 2007 in case No. 04cv1533 H (BLM) [Doc. No. 58].) Petitioner appealed that determination. On June 8, 2009, the Ninth Circuit Court of Appeals affirmed this Court's decision. (See Order in Baker v. Yates, No. 07-56316 (9th Cir. June 18, 2009).) On December 23, 2009, the Ninth Circuit Court of Appeals denied Baker's petitions for rehearing and rehearing en banc. (See Order in Baker v. Yates, 07-56316 (9th Cir. Dec. 23, 2009) [Doc. No. 70].)
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. For Petitioner's convenience, the Clerk of Court shall attach a blank Ninth Circuit Application for Leave to File Second or Successive Petition.
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