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Hill v. Spearman

United States District Court, Ninth Circuit

October 3, 2013

BERNARD HILL, Petitioner,
v.
MIRIAM SPEARMAN, Respondent.

SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION [Doc. No. 2]

MICHAEL M. ANELLO, District Judge.

Petitioner, Bernard Hill, 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 May 15, 2005 conviction in San Diego Superior Court case No. CD194373. On January 22, 2008, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 08cv0124. In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. CD194373 as well. On October 3, 2008, this Court denied that petition on the merits. [ See Order filed July 23, 2008 in case No. 08cv0124-JM(CAB) [Doc. No. 12].] On September 25, 2009, the Ninth Circuit Court of Appeals denied Petitioner's request for a certificate of appealability, terminating his attempt to appeal this Court's disposition of that habeas petition. [ See Order in Hill v. Tilton, No. 08-56778 (9th Cir. Sept. 25, 2009); Case No. 08cv0124-JM(CAB) [Doc. No. 19].] The Ninth Circuit subsequently denied Petitioner's application for authorization to file a second or successive petition in this Court. [ See Order filed July 11, 2012 in Case No. 08cv0124-JM(CAB) [Doc. No. 20].]

Petitioner acknowledges that he is now seeking to challenge the same conviction he challenged in his prior federal habeas petition. [Doc. No. 1 at 5.] 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). Petitioner provides as an exhibit to this Petition a copy of an "Application For Leave To File Second Or Successive Petition" addressed to the United States Court of Appeal for the Ninth Circuit bearing his signature and a date of September 20, 2013 [Doc. No. 1-1], permitting the inference that the Application may not yet have been decided. There is no indication at this time that 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.

IT IS SO ORDERED.


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