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8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10

11 ADAM ALEXANDER LIMBRICK, Case No.: 22cv00063-LL-WVG 12

Petitioner, 13 SUMMARY DISMISSAL OF v. SUCCESSIVE PETITION 14 PURSUANT TO 28 U.S.C. RAYMOND MADDEN, Warden, 15 § 2244(B)(3)(a) GATEKEEPER Respondent. PROVISION 16 17 Petitioner, a state prisoner proceeding pro se,1 has filed a Petition for a Writ of 18 Habeas Corpus pursuant to

, challenging his November 30, 2006, 19 convictions in San Diego County Superior Court case number SCD187132 for (1) first 20 degree murder committed during the course of a robbery; (2) attempted murder; (3) two 21 counts of robbery; and (4) one count of shooting at an inhabited dwelling, for which he 22 was sentenced to life in prison without the possibility of parole plus consecutive terms of 23 25 years to life and 48 years. ECF No. 1 at 1-2, 18. Petitioner claims that “[i]t has since 24 become clear that” his codefendant, who testified at their joint trial that Petitioner was the 25

26 1 In reviewing the instant Petition, the Court is mindful that “[a] document filed pro se is to be liberally construed … and a pro se [pleading], however inartfully pleaded, must 27 be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. 28 1 shooter, “has a documented record of dishonesty and making false, self-serving statements, 2 even under oath … and, in fact, several years later testified under oath to a different version 3 of events regarding the night in question … and no longer implicates Petitioner.”

at 7- 4 10. 5 PETITION BARRED BY GATEKEEPER PROVISION 6 The instant Petition is not the first Petition for a Writ of Habeas Corpus Petitioner 7 has submitted to this Court challenging his November 30, 2006, conviction in San Diego 8 Superior Court case number SCD187132. On November 17, 2010, Petitioner filed in this 9 Court a Petition for a Writ of Habeas Corpus challenging that same conviction. See 10 Limbrick v. Uribe, No. 3:10-cv-02376-JLS-MDD (S.D. Cal. Nov. 17, 2010), ECF No. 1. 11 He claimed, inter alia, that his due process rights were violated by the introduction of his 12 co-defendant’s testimony.

. On August 26, 2013, this Court denied the petition 13 on the merits of the claims presented and denied a certificate of appealability, observing in 14 part that “the record supports the state court’s finding that there was ‘strong and ample 15 independent evidence against (Petitioner) apart from [his co-defendant]’s testimony and 16 statements,” including that Petitioner was identified as the shooter by another witness 17 whose testimony was corroborated. See

at ECF No. 32 (adopting the magistrate judge’s 18 report and recommendation, denying the petition for writ of habeas corpus, and denying 19 the certificate of appealability). Petitioner appealed to the Court of Appeals for the Ninth 20 Circuit which also denied a certificate of appealability. See

at ECF No. 36; see also 21 Limbrick v. Uribe, No. 13-56709 (9th Cir. June 25, 2014). 22 Petitioner states that he is now seeking to challenge the same conviction he 23 challenged in his prior federal habeas petition on the basis that sometime after his 24 conviction, it came his attention that his co-defendant has a history of false testimony and 25 no longer implicates him as the shooter. ECF No. 1 at 1-10. 26

(b)(2) provides that: A claim presented in a second or successive habeas corpus 27 application under section 2254 that was not presented in a prior 28 application shall be dismissed unless— 1 of con(sAti)tu tthieo naaplp lliacwan, t mshaodwe sr tehtraot athctei vcela itmo rcealsieess oonn ac noelwla treuralel 2 review by the Supreme Court, that was previously unavailable; or 3 (B) (i) the factual predicate for the claim could not have 4 been discovered previously through the exercise of due diligence; and 5 (ii) the facts underlying the claim, if proven and viewed in 6 light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional 7 error, no reasonable factfinder would have found the applicant 8 guilty of the underlying offense. 9

(b)(1)-(2)(A)(B). 10 This provision creates a “gatekeeping” mechanism for consideration of second or 11 successive petitions. Felker v. Turpin,

(1996). “Before a second or 12 successive application permitted by this section is filed in the district court, the applicant 13 shall move in the appropriate court of appeals for an order authorizing the district court to 14 consider the application.”

(b)(3)(A). A petition is successive where it 15 challenges “the same custody imposed by the same judgment of a state court” as a prior 16 petition. Burton v. Stewart,

(2007); Slack v. McDaniel,

, 17 485-86 (2000) (noting that a petition is considered second or successive if the first petition 18 was denied on the merits of the claims raised). 19 Even if Petitioner’s claim of newly discovered evidence that his co-defendant now 20 admits he testified falsely satisfies

(b)(2)(B), he must first obtain 21 authorization from the Ninth Circuit Court of Appeals to file a petition in this Court. See 22 Rishor v. Ferguson,

, 490 (9th Cir. 2016) (stating that a failure to obtain 23 appellate court authorization for filing a successive petition acts as a jurisdictional bar). 24 Thus, unless a Petitioner shows he or she has obtained an Order from the appropriate court 25 of appeals authorizing the district court to consider a successive petition, the petition may 26 not be filed in this district court.

27 Here, Petitioner admits he has challenged this conviction in this Court in a prior 28 habeas petition but does not state that the Ninth Circuit Court of Appeals has granted him 1 || leave to file a successive petition. 2 CONCLUSION AND ORDER 3 Because there is no indication Petitioner has obtained permission from the Ninth 4 ||Circuit Court of Appeals to file a successive petition, this Court cannot consider his 5 || Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner 6 || filing a petition in this court if he obtains the necessary order from the Ninth Circuit Court 7 |\|of Appeals. If Petitioner has already been granted permission from the Ninth Circuit and 8 ||has only inadvertently omitted it from his Petition, he may, on or before June 22, 2022, 9 || present the Court with the authorization and request to have this case reopened. 10 The rules governing habeas cases brought in federal court by state prisoners require 11 ||a district court, when issuing an order denying such a petition, to either grant or deny a 12 certificate of appealability (“COA”). See Rules Governing § 2254 Cases, Rule 11(a). 13 ||““When the district court denies a habeas petition on procedural grounds without reaching 14 prisoner’s underlying constitutional claim, a COA should issue when the prisoner 15 || shows, at least, that jurists of reason would find it debatable whether the petition states a 16 || valid claim of the denial of a constitutional right and that jurists of reason would find it 17 || debatable whether the district court was correct in its procedural ruling.” Slack,

|| at 484. Under that standard, the Court DENIES a certificate of appealability. 19 The Clerk of Court is directed to send Petitioner a blank Ninth Circuit Application 20 Leave to File a Second or Successive Petition Under

together with 21 ||a copy of this Order. 2 IT IS SO ORDERED. <i :

23 || DATED: May 16, 2022 74 HON. LINDA LOPEZ United States District Judge 25 26 27 28