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Richard Earl George v. People of the State of California

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


March 13, 2013

RICHARD EARL GEORGE,
PETITIONER,
v.
PEOPLE OF THE STATE OF CALIFORNIA,
RESPONDENT.

The opinion of the court was delivered by: Hon. Anthony J. Battaglia U.S. District Judge

SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION

Petitioner, Richard Earl George, 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 to proceed in forma pauperis. The Court does not rule on Petitioner's request to proceed in forma pauperis 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 November 22, 205 conviction in San Diego Superior Court case No. SCD 17983. On November 19, 2007, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 07cv2215 J (POR). In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SCD 17983 as well. On September 24, 2009, this Court denied the petition on the merits. (See Order filed Sept. 24, 2009 in case No. 07cv2215 J (POR) [ECF No. 28].) Petitioner appealed that determination. On May 5, 2011 , the Ninth Circuit Court of Appeals affirmed this Court's decision. (See Order in George v. Almager, 09-56835 (9th Cir. May 5, 2011).)

On March 29, 2012, Petitioner filed another petition for writ of habeas corpus in case No. 12cv00790 LAB (WMc), in which he again challenged his conviction in San Diego Superior Court case No. SCD17983. On April 4, 2012, this Court summarily dismissed the petition as successive, pursuant to 28 U.S.C. §2244(b)(3)(A). (See Order filed April 4, 2012 in case No. 12cv0790 LAB (WMc) [ECF No. 3].) On August 8, 2012, the Ninth Circuit Court of Appeals denied Petitioner's application for authorization to file a second or successive petition. (See Order in George v. Vazquez, 12-71663 (9th Cir. Aug. 8, 2012).) The appellate court denied another such application from Petitioner on February 27, 2012. (See Order in George v. Biter, 12-73793 (9th Cir. Feb. 27, 2013).)

Petitioner is now seeking to challenge the same conviction he challenged in his prior federal habeas petitions. 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.

CONCLUSION

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.*fn1

IT IS SO ORDERED.


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