Free Order Dismissing Case - District Court of California - California

Case 3:08-cv-00961-IEG-NLS

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Filed 06/03/2008

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

TED DARNELL DANIELS, Petitioner, vs. V. ALMAGER, Warden, et al., Respondents.

Civil No.

08-0961 IEG (NLS)

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

Petitioner, Ted Darnell Daniels, 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 July 27, 2001 conviction in San Diego Superior Court case No. SDC 149951. On August 11, 2004, Petitioner filed in this Court a Petition for Writ of Habeas Corpus in case No. 04cv1639. In that petition, Petitioner challenged his conviction in San Diego Superior Court case No. SDC 149951 as well. On December 8, 2006, this Court denied the petition on the merits. (See Order filed Dec. 8, 2006 in case No. 04cv0639 DMS (WMc) [Doc. No. 45].) Petitioner appealed that determination. On August 3, 2007, the Ninth

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Case 3:08-cv-00961-IEG-NLS

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Filed 06/03/2008

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Circuit Court of Appeals denied Petitioner's request for a Certificate of Appealability. (See Order in Daniels v. Woodford, No. 07-55039 (9th Cir. Aug. 3, 2007) [Doc. No. 57].) 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 a blank Ninth Circuit Application for Leave to File Second or Successive Petition. IT IS SO ORDERED.
\ DATED: June 3, 2008

IRMA E. GONZALEZ, Chief Judge United States District Court

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