The opinion of the court was delivered by: Barry Ted Moskowitz, Chief Judge United States District Court
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)
Petitioner Frank Eli Heard, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, along with an application to proceed in forma pauperis. Petitioner challenges his January 18, 2008 conviction of two counts of attempted premeditated murder (imposed as a result of a jury verdict) and one count of voluntary manslaughter (imposed as a result of a guilty plea following a jury deadlock as to a murder charge), in San Diego Superior Court Superior Court Case No. SCD193832. (Pet. at 1.) Petitioner claims: (1) he received ineffective assistance of counsel based on his trial counsel's failure to call Wade Mills, Petitioner's co-defendant, as a defense witness to testify that Petitioner was not involved in the crimes; and (2) that his guilty plea was involuntary. (Pet. at 6-7.) For the following reasons, this case is summarily dismissed pursuant to 28 U.S.C. § 2244(b)(3)(A) as indicated below. The Court does not rule on Petitioner's in forma pauperis status.
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 January 18, 2008, conviction in San Diego Superior Court Case No. SCD193832. On September 25, 2009, Petitioner filed a Petition for a Writ of Habeas Corpus in SO. DIST. CA. CIVIL CASE NO. 09cv2117-POR. (See Petition [Doc. No. 1] in SO. DIST. CA. CIVIL CASE NO. 09cv2117-POR, filed 9/25/09; see also Second Amended Petition [Doc. No. 31] in SO. DIST. CA. CIVIL CASE NO. 09cv2117-POR, filed 11/12/10.) In that petition, Petitioner challenged his conviction in San Diego Superior Court Case No. SCD193832, alleging that he received an unfair trial due to the exclusion of statements which co-defendant Mills gave to the police upon his arrest stating that Petitioner was not involved in the crimes. (Id. at p. 6-6b.) On June 27, 2011, the Court denied the petition on the merits of the claims presented, and judgment was thereafter entered against Petitioner. (See Order filed 6/27/11 [Doc. No. 40] in SO. DIST. CA. CIVIL CASE NO. 09cv2117-POR; see also Judgment entered 6/28/11 [Doc. No. 41] in SO. DIST. CA. CIVIL CASE NO. 09cv2117-POR.)
The Court subsequently denied Petitioner's request for a Certificate of Appealability but granted his motion for leave to proceed in forma pauperis on appeal. (See Order filed 8/12/11 [Doc. No. 52] and Order filed 9/1/11 [Doc. No. 54] in SO. DIST. CA. CIVIL CASE NO. 09cv2117-POR.) An appeal of this Court's judgment is currently pending in the Ninth Circuit Court of Appeals. (See Heard v. Cate, 9th Cir. Case No. 11-56310, Order filed 12/14/11 [Doc. No. 18] noting that appellant's opening brief has been received and that the determination whether to issue a Certificate of Appealability is pending).
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 that Petitioner has requested or received permission from the Ninth Circuit Court of Appeals to file a successive petition. Accordingly, the Court is unable to consider the Petition.
Accordingly, the Court DISMISSES this action without prejudice to Petitioner to refile his Petition if and when he receives the necessary permission from the Ninth Circuit Court of Appeals. The Clerk of Court shall send Petitioner a blank Ninth Circuit Application for Leave to File a Second or Successive Petition.
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