Opinion
Civil No. 12cv2395-WQH (BGS)
10-31-2012
CAROLE A. RUCKER, Petitioner, v. D. K. JOHNSON, Warden, Respondent.
SUMMARY DISMISSAL OF
SUCCESSIVE PETITION
PURSUANT TO 28 U.S.C.
§ 2244(b)(3)(A) GATEKEEPER
PROVISION
Petitioner Carole A. Rucker, a state prisoner proceeding pro se and in forma pauperis, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. The 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 her June 17, 2003, conviction for attempted murder in San Diego Superior Court case No. SCE 167667, and resultant sentence of thirty-two years to life in state prison. On February 27, 2007, Petitioner filed in this Court a Petition for a Writ of Habeas Corpus in So. Dist.Ca.Civil Case No. 07cv0364-IEG (RBB). In that petition, Petitioner also challenged her conviction and sentence in San Diego Superior Court case No. SCE 167667. (See Pet. filed Feb. 27, 2007 [Doc. No. 1] in So.Dist.Ca.Civil Case No. 07cv0364-IEG (RBB).) On September 3, 2008, this Court adopted a Report and Recommendation and denied the petition on the merits of the claims presented therein. (See Order filed Sept. 3, 2008 [Doc. No. 16] in So.Dist.Ca.Civil Case No. 07cv0364-IEG (RBB).) Petitioner appealed that determination. The Ninth Circuit Court of Appeals affirmed the denial of the petition in all respects. (See Order filed March 4, 2010 in Rucker v. Lattimore, No. 08-56652 (9th Cir. 2010) (unpublished memorandum) [Doc. No. 24] in So.Dist.Ca.Civil Case No. 07cv0364-IEG (RBB).)
Petitioner is seeking in this case to challenge the same conviction she challenged in her prior federal habeas petition, which was denied on the merits of the claims presented therein. 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. In fact, Petitioner indicates that she has not been provided with such permission. (Pet. at 5.)
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 her Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner filing a petition in this court if she obtains the necessary order from the Ninth Circuit Court of Appeals. The Clerk of Court shall send Petitioner a blank Ninth Circuit Application for Leave to File a Second or Successive Petition along with a copy of this Order.
IT IS SO ORDERED.
_________________
William Q. Hayes
United States District Judge