1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENYATTA QUINN MITCHELL, Case No.: 21-CV-1261 JLS (MDD)

12 Petitioner,

ORDER: (1) SUMMARILY

13 v. DISMISSING SUCCESSIVE

PETITION PURSUANT TO

14 CDCR DIRECTOR, et al., 28 U.S.C. § 2244(b)(3)(A) 15 Respondents. GATEKEEPER PROVISION; (2) DENYING REQUEST TO 16

PROCEED IN FORMA PAUPERIS

17 AS MOOT; AND (3) DECLINING

TO ISSUE CERTIFICATE OF

18

APPEALABILITY

19 (ECF Nos. 1, 2) 20

21 Petitioner Kenyatta Quinn Mitchell (“Petitioner”), a state prisoner proceeding pro 22 se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 that 23 challenges his 2016 conviction in San Diego County Superior Court, case number 24 SCN362476, for which he was sentenced to 17 years. See ECF No. 1 (“Pet.”) at 1. 25 Petitioner has also filed a request to proceed in forma pauperis (“IFP”) (“IFP Mot.,” ECF 26 No. 2), which the Court DENIES AS MOOT because this case is summarily dismissed 27 pursuant to 28 U.S.C. § 2244(b)(3)(A), as discussed below. 28 / / / 1 PETITION BARRED BY 28 U.S.C. § 2244(b)(3)(A) GATEKEEPER PROVISION 2 Upon review, the instant Petition is not the first Petition for a Writ of Habeas Corpus 3 Petitioner has submitted to this Court challenging his 2016 conviction and sentence in San 4 Diego County Superior Court, case number SCN362476. On April 6, 2018, Petitioner filed 5 in this Court a Petition for a Writ of Habeas Corpus challenging his 2016 conviction and 6 sentence of 17 years in San Diego Superior Court, case number SCN362476, of which the 7 Court takes judicial notice. See ECF No. 1 in Civil Case No. 18-CV-697 WQH (BLM) 8 (S.D. Cal. filed Apr. 6, 2018); see also United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 9 1980) (“[A] court may take judicial notice of its own records in other cases, as well as the 10 records of an inferior court in other cases.”). On January 10, 2019, that petition was denied 11 on the merits. See ECF No. 30 in Civil Case No. 18-CV-697 WQH (BLM). On December 12 23, 2019, the Ninth Circuit Court of Appeals denied Petitioner’s request for a certificate of 13 appealability. See Mitchell v. Dep’t of Corr. & Rehab., Case No. 19-55108, 2019 WL 14 7756435 (9th Cir. Dec. 23, 2019). 15 In the instant Petition, Petitioner again seeks to challenge this same 2016 conviction 16 and sentence. See Pet. at 1. Petitioner acknowledges that this is not his first federal petition 17 for a writ of habeas corpus challenging his 2016 conviction in San Diego Superior Court, 18 case number SCN362476, and acknowledges the prior federal petition was denied on the 19 merits. See id. at 5, 26. Petitioner also indicates that one or more of the same issues 20 presented in the instant Petition were raised in the prior federal petition. Id. However, 21 “[b]efore a second or successive application permitted by this section is filed in the district 22 court, the applicant shall move in the appropriate court of appeals for an order authorizing 23 the district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A); see also Burton 24 v. Stewart, 549 U.S. 147, 153 (2007) (noting that a petition is “second or successive” where 25 the petitioner challenges “the same custody imposed by the same judgment of a state court” 26 as in a prior petition). 27 Even were Petitioner able to demonstrate that his Petition falls within the statutory 28 provisions allowing for permission to file a second or successive habeas petition, see 28 1 U.S.C. § 2244(b)(2)(A)-(B), Petitioner must still first obtain authorization from the Ninth 2 Circuit Court of Appeals to file a petition in this Court. See 28 U.S.C. § 2244(b)(3)(A); 3 see also Morales v. Sherman, 949 F.3d 474, 476 (9th Cir. 2020) (per curiam) (recognizing 4 that 28 U.S.C. § 2244(b)(3)(A) is “a provision that bars district courts from entertaining a 5 second or successive petition unless its filing has first been authorized by the court of 6 appeals”). In the instant case, Petitioner indicates he has not obtained permission from the 7 Ninth Circuit Court of Appeals to file a second or successive petition, see Pet. at 5, 26, and 8 the Court’s review of the Ninth Circuit’s electronic docket similarly fails to reflect that 9 Petitioner has sought or obtained such permission. Accordingly, this Court cannot consider 10 the instant Petition and DISMISSES it WITHOUT PREJUDICE. 11 CERTIFICATE OF APPEALABILITY 12 A certificate of appealability (“COA”) is required to appeal to the court of appeals 13 “the final order in a habeas corpus proceeding in which the detention complained of arises 14 out of process issued by a State court” and is warranted “only if the applicant has made a 15 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(1)(A) & 16 (c)(2). “When the district court denies a habeas petition on procedural grounds without 17 reaching the prisoner’s underlying constitutional claim, a COA should issue when the 18 prisoner shows, at least, that jurists of reason would find it debatable whether the petition 19 states a valid claim of the denial of a constitutional right and that jurists of reason would 20 find it debatable whether the district court was correct in its procedural ruling.” Slack v. 21 McDaniel, 529 U.S. 473, 484 (2000). 22 In the instant case, because Petitioner previously filed a petition challenging his 2016 23 conviction in case number SCN362476, which was denied on the merits, and there is no 24 indication Petitioner has received permission from the Ninth Circuit to file a second or 25 successive petition, the Court is not persuaded that Petitioner has shown that “jurists of 26 reason would find it debatable whether the district court was correct” in dismissing the 27 instant petition for lack of authorization. See 28 U.S.C. § 2244(b)(3)(A); id. § 2253(c); 28 / / / 1 || Burton, 549 U.S. at 153; Slack, 529 U.S. at 484. Accordingly, the Court DECLINES to 2 ||issue a COA. 3 CONCLUSION 4 Because there is no indication that the Ninth Circuit Court of Appeals has granted 5 Petitioner leave to file a second or successive petition, this Court cannot consider the 6 Petition (ECF No. 1). Accordingly, the Court DISMISSES the instant Petition 7 || WITHOUT PREJUDICE to Petitioner filing a petition in this Court if he obtains the 8 ||necessary order from the Ninth Circuit Court of Appeals and DENIES Petitioner’s IFP 9 || Motion (ECF No. 2) as moot. The Court further DECLINES to issue a COA. 10 The Court DIRECTS the Clerk of the Court to send Petitioner a blank Ninth Circuit 11 Application for Leave to File a Second or Successive Petition Under 28 U.S.C. § 2254 12 || together with a copy of this Order. 13 IT IS SO ORDERED. 14 Dated: July 15, 2021 . tt f te 15 on. Janis L. Sammartino 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28