1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 ANTHONY A. BUSH, Case No.: 20cv0180 LAB (KSC)

12 Petitioner, SUMMARY DISMISSAL OF 13 v. SUCCESSIVE PETITION PURSUANT TO

(b)(3)(A) 14 G. MATTESON, Warden, et al., GATEKEEPER PROVISION; 15 Respondents. DENYING IFP REQUEST AS MOOT; DECLINING TO ISSUE 16 CERTIFICATE OF APPEALABILITY 17 18 Petitioner, a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas 19 Corpus pursuant to

, challenging his 1995 conviction in San Diego County 20 Superior Court case number SCD108063. (ECF No. 1 at 1.) Petitioner has also filed a 21 request to proceed in forma pauperis (“IFP”), (see ECF No. 2), which the Court denies as 22 moot because this case is summarily dismissed pursuant to

(b)(3)(A) as 23 discussed below. 24 PETITION BARRED BY GATEKEEPER PROVISION 25 The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner 26 has submitted to this Court challenging his 1995 conviction in San Diego County Superior 27 Court case number SCD108063. On January 25, 2001, Petitioner filed in this Court a 28 Petition for a Writ of Habeas Corpus challenging this same conviction. (See ECF No. 1 in 1 S.D. Cal. Civil Case No. 01cv0142 BEN (NLS).) On November 27, 2002, this Court 2 denied the petition on the merits. (See ECF No. 32 in S.D. Cal. Civil Case No. 01cv0142 3 BEN (NLS).) On February 29, 2008, the Ninth Circuit reversed in part and affirmed in 4 part the denial of the petition and remanded for a hearing. See Bush v. Pliler, et al., No. 5 04-56348,

(9th Cir. 2008). On December 1, 2008, this Court held an 6 evidentiary hearing, and on March 3, 2009, this Court denied the petition on the merits. 7 (See ECF Nos. 82, 90 in S.D. Cal. Civil Case No. 01cv0142 BEN (NLS).) Petitioner 8 appealed, and on February 16, 2011, the Ninth Circuit Court of Appeals affirmed the 9 district court decision denying habeas relief. See Bush v. Pliler et al., No. 09-55465, 413

(9th Cir. 2011). 11 On August 9, 2019, Petitioner again filed a Petition for a Writ of Habeas Corpus in 12 this Court challenging this same conviction. (See ECF No. 1 in S.D. Cal. Civil Case No. 13 19cv1508 CAB (NLS).) On September 16, 2019, this Court dismissed the action without 14 prejudice to Petitioner obtaining an Order from the Ninth Circuit Court of Appeals 15 authorizing the filing and consideration of a successive petition. (See ECF No. 2 at 2 in 16 S.D. Cal. Civil Case No. 19cv1508 CAB (NLS).) 17 In the instant Petition, Petitioner again seeks to challenge his 1995 conviction and 18 sentence. (See ECF No. 1 at 1.) Petitioner acknowledges that his is not his first federal 19 petition for a writ of habeas corpus challenging this same conviction. (See

.) 20 “Before a second or successive application permitted by this section is filed in the district 21 court, the applicant shall move in the appropriate court of appeals for an order authorizing 22 the district court to consider the application.”

(b)(3)(A); see also Burton ----------- 23 v. Stewart,

(2007) (a petition is “second or successive” where the 24 petitioner challenges “the same custody imposed by the same judgment of a state court” as 25 in a prior petition.) Even were Petitioner able to demonstrate that his petition falls within 26 the statutory provisions allowing for permission to file a second or successive habeas 27 petition, see

(b)(2)(A)-(B), Petitioner must still first obtain authorization 28 from the Ninth Circuit Court of Appeals to file a petition in this Court. See 28 U.S.C. 1 § 2244(b)(3)(A); see also Morales v. Sherman, No. 17-56304, ___ F.3d ___,

486169, at *2 (9th Cir. Jan. 30, 2020) (per curiam) (recognizing that 28 U.S.C. 3 § 2244(b)(3)(A) is “a provision that bars district courts from entertaining a second or 4 successive petition unless its filing has first been authorized by the court of appeals.”) 5 In the instant case, Petitioner did not check any box in the section of the petition 6 form asking whether the Ninth Circuit Court of Appeals has granted permission to file a 7 second or successive petition. (See ECF No. 1 at 18.) Petitioner offers nothing to show 8 that he sought and received permission from the Ninth Circuit Court of Appeals to file the 9 instant Petition. 10 CERTIFICATE OF APPEALABILITY 11 A certificate of appealability (“COA”) is required to appeal to the court of appeals 12 “the final order in a habeas corpus proceeding in which the detention complained of arises 13 out of process issued by a State court,” and is warranted “only if the applicant has made a 14 substantial showing of the denial of a constitutional right.”

(c)(1)(A) and 15 (c)(2). “When the district court denies a habeas petition on procedural grounds without 16 reaching the prisoner’s underlying constitutional claim, a COA should issue when the 17 prisoner shows, at least, that jurists of reason would find it debatable whether the petition 18 states a valid claim of the denial of a constitutional right and that jurists of reason would 19 find it debatable whether the district court was correct in its procedural ruling.” Slack v. 20 McDaniel,

(2000). Here, because Petitioner previously filed a petition 21 challenging his 1995 conviction which was denied on the merits, and there is no indication 22 Petitioner has received permission from the Ninth Circuit Court of Appeals to file a 23 successive petition, the Court is not persuaded that Petitioner has shown “jurists of reason 24 would find it debatable whether the district court was correct” in dismissing the instant 25 petition for lack of authorization. See

(b)(3)(A);

(c); 26 Burton,

; Slack,

. Accordingly, the Court declines to issue 27 a COA. 28 /// 1 CONCLUSION 2 Because there is no indication that the Ninth Circuit Court of Appeals has granted 3 Petitioner leave to file a successive petition, this Court cannot consider the Petition. 4 || Accordingly, the Court DISMISSES this action without prejudice to Petitioner filing a 5 || petition in this Court if he obtains the necessary order from the Ninth Circuit Court of 6 || Appeals and DENIES Petitioner’s IFP request [ECF No. 2] as moot. The Court 7 || DECLINES to issue a COA. The Clerk of Court is directed to send Petitioner a blank 8 Ninth Circuit Application for Leave to File a Second or Successive Petition Under 28 9 11U.S.C. § 2254 together with a copy of this Order. 10 IT IS SO ORDERED. 11 DATED: February 4, 2020 lau Aq: ( Zn 2 Hon. Larry Alan Burns Chief United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28