Free Order Dismissing Case - District Court of California - California

Case 3:08-cv-00647-J-NLS

Document 2

Filed 04/18/2008

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

RICHARD ALLEN CUEVAS, Petitioner, vs. ROBERT HERNANDEZ, Warden, et al., Respondents.

Civil No.

08cv0647 J (NLS)

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

Petitioner, Richard Cuevas, a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The Court finds 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 that Petitioner has submitted to this Court challenging his July 30, 2001 conviction in San Diego Superior Court Case No. SCD154691. On January 17, 2003, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case number 03cv0114 W (BEN). In that petition, Petitioner challenged his conviction in San Diego Superior Court Case No. SCD154691 as well. On September 11, 2003, this Court denied the petition on the merits. (See Order filed Sept. 11, 2003 in case No. 03cv0114 W (BEN) [Doc. No. 12].) Petitioner did not appeal that determination. ///
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08cv0647

Case 3:08-cv-00647-J-NLS

Document 2

Filed 04/18/2008

Page 2 of 2

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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. For Petitioner's convenience, the Clerk of Court shall attach to this Order, a blank Ninth Circuit Application for Leave to File Second or Successive Petition. IT IS SO ORDERED.

DATED: April 18, 2008 HON. NAPOLEON A. JONES, JR. United States District Judge

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