1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 GABRIEL JOHN BRADWAY, Case No.: 24-cv-2208-MMA (SBC)

12 Petitioner,

ORDER DISMISSING PETITION

13 v. WITHOUT PREJUDICE AND

DECLINING TO ISSUE CERTIFICATE

14 PEOPLE OF THE STATE OF

OF APPEALABILITY

CALIFORNIA,

15 Respondent. 16

17 18 Petitioner Gabriel John Bradway, a state prisoner confined at Valley State Prison 19 proceeding pro se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 20 U.S.C. § 2254 challenging his 2004 conviction and sentence in San Diego County 21 Superior Court case number SCE216951. Doc. No. 1. For the reasons discussed below, 22 the Court dismisses the Petition without prejudice and declines to issue a certificate of 23 appealability. 24 I. FAILURE TO SATISFY FILING FEE REQUIREMENT 25 First, Petitioner has neither paid the $5.00 filing fee nor moved to proceed in forma 26 pauperis (“IFP”). Because this Court cannot proceed until Petitioner has either paid the 27 $5.00 filing fee or qualified to proceed IFP, the case is subject to dismissal without 28 prejudice. See R. 3(a), Rules Governing Section 2254 Cases (2019). 1 II. PETITION BARRED BY GATEKEEPER PROVISION 2 Moreover, upon review, the instant Petition is not the first Petition for a Writ of 3 Habeas Corpus Petitioner has filed in this District challenging his 2004 conviction and 4 sentence in San Diego County Superior Court case number SCE216951. On January 3, 5 2007, Petitioner filed in this District a Petition for a Writ of Habeas Corpus challenging 6 this same 2004 San Diego Superior Court conviction and sentence. See Doc. No. 1 in 7 Bradway v. Tilton, et al., So. Dist. Cal. Case No. 07-cv-0022-IEG (POR). On February 8 15, 2008, the Court denied that petition on the merits and granted a certificate of 9 appealability. See Doc. No. 13 in Bradway v. Tilton, et al., So. Dist. Cal. Case No. 07- 10 cv-0022-IEG (POR). On December 3, 2009, the Ninth Circuit Court of Appeals affirmed 11 the district court’s denial and on December 29, 2009, issued the mandate. See Doc. No. 12 24 in Bradway v. Tilton, et al., So. Dist. Cal. Case No. 07-cv-0022-IEG (POR) (copy of 13 Ninth Circuit’s order and mandate in Bradway v. Cate, et al., Case No. 08-55296). The 14 Court takes judicial notice of these prior filings and orders. See United States v. Wilson, 15 631 F.2d 118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own records 16 in other cases, as well as the records of an inferior court in other cases.”) 17 Here, Petitioner presently seeks to challenge this same 2004 judgment of 18 conviction. Doc. No. 1. Petitioner explains that he did not previously raise on direct 19 appeal the issues he now presents because he was “not aware” of those issues due to 20 being “misled” by counsel and/or the prosecution. Id. at 6-7. While Petitioner 21 acknowledges he previously appealed this conviction in the Ninth Circuit in case number 22 08-55296, see id. at 2, he has also separately checked “no” on the section of the habeas 23 form asking whether he had “previously filed any type of petition, application, or motion 24 in a federal court regarding the conviction that you challenge in this petition.” Id. at 21. 25 A habeas petition is “second or successive” where a petitioner challenges “the 26 same custody imposed by the same judgment of a state court” as in a prior petition. See 27 Burton v. Stewart, 549 U.S. 147, 153 (2007). Moreover, “[b]efore a second or successive 28 application permitted by this section is filed in the district court, the applicant shall move 1 in the appropriate court of appeals for an order authorizing the district court to consider 2 the application.” 28 U.S.C. § 2244(b)(3)(A). Thus, even were Petitioner able to 3 demonstrate that the instant Petition falls within the statutory provisions allowing for 4 permission to file a second or successive habeas petition, see 28 U.S.C. § 2244(b)(2)(A)- 5 (B), because Petitioner has previously challenged this same judgment, he still first must 6 obtain authorization from the Ninth Circuit to file a petition in this District. See 28 7 U.S.C. § 2244(b)(3)(A); see also Morales v. Sherman, 949 F.3d 474, 476 (9th Cir. 2020) 8 (per curiam) (recognizing that 28 U.S.C. § 2244(b)(3)(A) is “a provision that bars district 9 courts from entertaining a second or successive petition unless its filing has first been 10 authorized by the court of appeals”). 11 Petitioner offers nothing to show that he sought and received permission from the 12 Ninth Circuit Court of Appeals to file the instant Petition and the Court finds no record 13 indication that Petitioner has either sought, much less, obtained, any such permission. 14 Accordingly, this Court lacks jurisdiction to consider the instant Petition. 15 III. CERTIFICATE OF APPEALABILITY 16 A certificate of appealability (“COA”) is required to appeal to the court of appeals 17 “the final order in a habeas corpus proceeding in which the detention complained of 18 arises out of process issued by a State court,” and is warranted “only if the applicant has 19 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. 20 § 2253(c)(1)(A) and (c)(2). “When the district court denies a habeas petition on 21 procedural grounds without reaching the prisoner’s underlying constitutional claim, a 22 COA should issue when the prisoner shows, at least, that jurists of reason would find it 23 debatable whether the petition states a valid claim of the denial of a constitutional right 24 and that jurists of reason would find it debatable whether the district court was correct in 25 its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 26 Here, because Petitioner previously filed a petition challenging his 2004 conviction 27 and sentence in San Diego County Superior Court case number SCE216951 which was 28 denied on the merits and there is no indication he has received permission from the Ninth 1 || Circuit Court of Appeals to file a second or successive petition, the Court is not 2 || persuaded that Petitioner has shown “jurists of reason would find it debatable whether the 3 || district court was correct” in dismissing the instant petition for lack of authorization. See 4 U.S.C. § 2244(b)(3)(A); 28 U.S.C. § 2253(c); Burton, 549 US. at 153; Slack, 529 5 at 484. Accordingly, the Court declines to issue a COA. 6 IV. CONCLUSION AND ORDER 7 For the reasons discussed above, the Court DISMISSES this action WITHOUT 8 || PREJUDICE. Because there is no indication that the Ninth Circuit Court of Appeals has 9 || granted Petitioner leave to file a successive petition, this Court cannot consider the 10 || Petition. Petitioner is not precluded from filing a petition in this Court challenging his 11 |}2004 conviction and sentence if he first obtains the necessary order from the Ninth 12 || Circuit Court of Appeals. The Court DECLINES to issue a COA. The Clerk of Court is 13 || directed to send Petitioner a blank Ninth Circuit Application for Leave to File a Second 14 |/or Successive Petition Under 28 U.S.C. § 2254 together with a copy of this Order. 15 IT IS SO ORDERED. 16 || Dated: December 4, 2024 17

19 United States District Judge 20 21 22 23 24 25 26 27 28