1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 TYRONE ROGERS, Case No. 3:20-cv-1139-WQH-RBM

12 Plaintiff,

SUMMARY DISMISSAL OF

13 v. SUCCESSIVE PETITION

PURSUANT TO 28 U.S.C.

14 JOSIE GASTELO, Warden, § 2244(b)(3)(A) GATEKEEPER 15 Defendant. PROVISION 16 17 Petitioner has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 18 § 2254, along with a motion to proceed in forma pauperis. For the reasons discussed below, 19 this case is summarily dismissed pursuant to 28 U.S.C. § 2244(b)(3)(A). As such, the Court 20 does not rule on Petitioner’s request to proceed in forma pauperis. 21 PETITION BARRED BY GATEKEEPER PROVISION 22 The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner 23 has submitted to this Court challenging his January 13, 2004 conviction in San Diego 24 County Superior Court Case No. SCD176027. On November 17, 2006, Petitioner filed in 25 a Court a Petition for Writ of Habeas Corpus in case number 06-cv-2549 H (NLS). In 26 that petition, Petitioner challenged his January 13, 2004 conviction as well. On July 11, 27 2007, this Court denied the petition on the merits. See Rogers v. Giurbino, 06-cv-2549- 28 H-NLS (ECF No. 10). Petitioner filed a notice of appeal. (See ECF No. 11). On July 24, 1 2008, the Ninth Circuit Court of Appeals denied Petitioner a certificate of appealability. 2 See Rogers v. Giurbino, No. 07-56731 (9th Cir. July 24, 2008) (ECF No. 21). 3 Petitioner is now seeking to challenge the same conviction he challenged in his 4 prior federal habeas petition. Unless a petitioner shows he or she has obtained an order 5 from the appropriate court of appeals authorizing the district court to consider a 6 successive petition, the petition may not be filed in the district court. See 28 U.S.C. 7 § 2244(b)(3)(A); see also Burton v. Stewart, 549 U.S. 147, 153 (2007) (a petition is 8 successive where it challenges “the same custody imposed by the same judgment of a 9 state court” as a prior petition). A successive application is permissible “only if it rests 10 on a new rule of constitutional law, facts that were previously unavailable, or facts that 11 would be sufficient to show constitutional error in the petitioner’s conviction.” Woods v. 12 Carey, 525 F.3d 886, 888 (9th Cir. 2008) (citing 28 U.S.C. § 2244(b)(2)). “Even if a 13 petitioner can demonstrate that he qualifies for one of these exceptions, he must seek 14 authorization from the court of appeals before filing his new petition with the district 15 court.” Id. Here, there is no indication the Court of Appeals for the Ninth Circuit has 16 granted Petitioner leave to file a successive petition. 17 CONCLUSION 18 Because there is no indication Petitioner has obtained permission from the Court of 19 Appeals for the Ninth Circuit to file a successive petition, this Court cannot consider his 20 Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner 21 filing a petition in this court if he obtains the necessary order from the Court of Appeals 22 for the Ninth Circuit. 23 Further, Petitioner has failed to make “a substantial showing of the denial of a 24 constitutional right,” and reasonable jurists would not find debatable this Court’s 25 assessment of his claims. See 28 U.S.C. § 2253(c). As such, a certificate of appealability 26 is DENIED. See Rules Governing § 2254 Cases, Rule 11(a) (requiring the district court 27 that issues an order denying a habeas petition to either grant or deny a certificate of 28 / / / 1 || appealability). For Petitioner’s convenience, the Clerk of Court shall attach a blank 2 || Ninth Circuit Application for Leave to File Second or Successive Petition. 3 IT IS SO ORDERED. Dated: July 27, 2020 Nitta Ke Mayes □ 5 Hon. William Q. Hayes 6 United States District Court 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28