Hon. Cynthia Bashant United States District Judge
SUMMARY DISMISSAL OF SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION
Petitioner, Salvador M. Gonzalez, 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 and a motion to appoint counsel. The Court does not rule on Petitioner's request to proceed in forma pauperis or his motion to appoint counsel 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 June 15, 2007 conviction in Imperial County Superior Court case No. JCF18113. On October 28, 2010, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 10cv2243 JLS (RBB). In that petition, Petitioner challenged his conviction in Imperial County Superior Court case No. JCF18113 as well. On August 26, 2013, this Court denied the petition on the merits. (See Order filed June 26, 2002 in case No. 10cv2243 JLS (RBB) [Doc. No. 31].) Petitioner appealed that determination. On September 12, 2012, the Ninth Circuit Court of Appeals denied Petitioner a certificate of appealability. (See Order in Gonzalez v. Busby, et al., No. 13-56594 (9th Cir. Sept. 12, 2014).)
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.
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. The Clerk of Court is directed to mail Petitioner a blank Application to File a Second or Successive Petition or Motion Under 28 U .S.C. § 2254 or § 2255 together with a copy of this Order.
IT IS SO ORDERED. DATED: October 1, 2015
/s/ _________
Hon. Cynthia Bashant
United States District Judge