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Thomas Leslie Kirkpatrick v. Area Fakoury (Warden

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA


October 27, 2011

THOMAS LESLIE KIRKPATRICK,
PETITIONER,
v.
AREA FAKOURY (WARDEN),
RESPONDENT.

The opinion of the court was delivered by: Alicemarie Stotler United States District Judge

ORDER DISMISSING PETITION AS SUCCESSIVE

Petitioner is a prisoner in state custody pursuant to a 2003 conviction in California Superior Court, Orange County, Case No. 02HF1045. This pro se Petition challenges the legality of his conviction and sentence. Because it is a second or successive petition filed without prior authorization from the Ninth Circuit Court of Appeals, the Petition must be dismissed.

DISCUSSION

Petitioner has brought two prior federal habeas petitions in this District challenging the same conviction he challenges here. The first of these, Kirkpatrick v. The People, No. SACV 05-1646-AHS(CW), was voluntarily dismissed without prejudice on March 20, 2006. The second, Kirkpatrick v. Guillermina Hall, No. SACV 07-702-AHS(CW), was dismissed with prejudice, as untimely, in a judgment issued on October 14, 2008.

A new habeas petition under 28 U.S.C. § 2254 challenging the same state court judgment addressed in one or more prior § 2254 petitions disposed of with prejudice, such as the one in this matter, is a "second or successive" petition. A federal district court may not consider a second or successive petition unless the petitioner has first obtained an order from the proper federal circuit court of appeals authorizing the district court to review the new petition. See 28 U.S.C. § 2244(b)(3)(A). The court of appeals may authorize review of a second or successive petition in the district court only if the petitioner "makes a prima facie showing [to the court of appeals] that the application satisfies the requirements of" 28 U.S.C. § 2244(b). See 28 U.S.C. § 2244(b)(3)(C); Felker v. Turpin, 518 U.S. 651, 657, 116 S. Ct. 2333, 135 L. Ed. 2d 827 (1996).

Because there is no indication in the record that Petitioner has obtained such an order, this Petition is subject to dismissal without prejudice.*fn1 Petitioner may file a new petition in this court if and only if he first obtains authorization from the Ninth Circuit pursuant to 28 U.S.C. § 2244(b)(3)(A).

ORDERS:

1. It is ORDERED that judgment be entered dismissing the petition as successive.

2. The clerk shall serve copies of this order and the judgment herein on the petitioner.

Presented by: Dated: October 5, 2011 CARLA M. WOEHRLE United States Magistrate Judge


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