Free Order Dismissing Case - District Court of California - California

Case 3:08-cv-00492-BTM-NLS

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -1vs. A. HEDGEPETH, et al., Respondents. JOHN FINDLEY KENDRICK, II, Petitioner, ORDER DISMISSING HABEAS PETITION WITHOUT PREJUDICE AS SECOND OR SUCCESSIVE Civil No. 08-0492 BTM (NLS) UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

On March 17, 2008, Petitioner, a state prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. In this action, Petitioner is challenging his June 19, 1997, San Diego County Superior Court conviction and sentence in Case No. SCD123570. (See Petition at 1-2.) On February 22, 2001, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in SO. DIST. CA. CIVIL CASE NO. 01cv0303 K (CGA). (See Petition in SO. DIST. CA. CIVIL CASE NO. 01cv0303 K (CGA), filed Feb. 22, 2001 at p. 1-2.). In that petition, Petitioner challenged his conviction and sentence in San Diego Superior Court case No. SCD123570 as well. On April 26, 2002, this Court dismissed the petition because it had been filed after the expiration of the one-year statute of limitations. (See Order filed Apr. 26, 2002 in SO. DIST. CA. CIVIL CASE NO. 01cv0303 K (CGA).) On December 11, 2006, the Ninth Circuit Court of Appeals

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Case 3:08-cv-00492-BTM-NLS

Document 2

Filed 05/01/2008

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denied Petitioner's request to file a second or successive petition. (See Kendrick v. Roe, slip op. No. 06-74341 (9th Cir. Dec. 11, 2006).) INSTANT PETITION BARRED BY GATEKEEPER PROVISION 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); Murray v. Greiner, 394 F.3d 78 (2d Cir. 2005) (holding that dismissal for failure to comply with one-year statute of limitations renders subsequent petitions challenging the same conviction or sentence "second or successive" under 2244(b)); Reyes v. Vaughn, 276 F.Supp.2d 1027, 1029 (C. D. Cal. 2003) (same). 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 IS DIRECTED TO MAIL PETITIONER A BLANK NINTH CIRCUIT APPLICATION FOR LEAVE TO FILE A SECOND OR SUCCESSIVE PETITION. The Clerk shall close the file. IT IS SO ORDERED.

DATED: April 28, 2008

Honorable Barry Ted Moskowitz United States District Judge

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