1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KELLY FRITHIOF SUNDBERG, Case No. 3:22-cv-1897-CAB-BLM

12 Petitioner, SUMMARY DISMISSAL OF 13 v. SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. 14 JANINE WALLACE, Warden, et al., § 2244(b)(3)(A) GATEKEEPER 15 Respondents. PROVISION 16 17 On November 30, 2022, Petitioner, currently in custody at Patton State Hospital after 18 pleading guilty by reason of insanity, filed a Petition for Writ of Habeas Corpus pursuant 19 to

. ECF No. 1. On December 5, 2022, the Court granted Petitioner’s 20 request to proceed in forma pauperis but dismissed the Petition for failure to state a 21 cognizable claim. ECF No. 4. The Court also noted that, while it was not entirely clear, it 22 appeared Petitioner had previously challenged his detention under § 2254. Id. The Court 23 gave Petitioner leave to file an amended petition and, after an extension of time, he did so 24 on January 11, 2023. See ECF No. 8. For the reasons discussed below, this case is 25 summarily dismissed pursuant to

(b)(3)(A). 26 PETITION BARRED BY GATEKEEPER PROVISION 27 As the Court noted in its previous dismissal order, this is not the first time Petitioner 28 has attempted to challenge his custody in Patton State Hospital via federal petition for writ 1 of habeas corpus. On December 30, 2016, Petitioner filed in this Court a Petition for Writ 2 of Habeas Corpus in case No. 3:16-cv-3127. See Pet. Sundberg v Oreol, Civ. Case No. 3 3:16-cv-3127-WQH-AGS (S.D. Cal.), ECF No. 1. In that petition, Petitioner challenged 4 his detention at Patton State Hospital as well. See

at 1–2. On March 28, 2019, this Court 5 dismissed the petition because it had been filed after the expiration of the one-year statute 6 of limitations. See Order, Sundberg v. Oreol, 16cv1372-WQH-AGS, ECF No. 62 (S.D. 7 Cal. Mar. 28, 2019). Petitioner appealed that determination and on May 1, 2020, the Ninth 8 Circuit Court of Appeals affirmed this Court’s decision. See Order, Sundberg v. Oreol, No. 9 19-55371 (9th Cir. May 1, 2020). 10 It is now clear Petitioner seeking to challenge the sentence imposed as a result the 11 same conviction he challenged in his prior federal habeas petition. To do so, he must obtain 12 an order from the appropriate court of appeals authorizing the district court to consider a 13 successive petition, the petition may not be filed in the district court. See

2244(b)(3)(A); see also Burton v. Stewart,

(2007) (a petition is 15 successive where it challenges “the same custody imposed by the same judgment of a state 16 court” as a prior petition).1 A successive application is permissible “only if it rests on a 17 new rule of constitutional law, facts that were previously unavailable, or facts that would 18 be sufficient to show constitutional error in the petitioner's conviction.” 28 U.S.C. 19 § 2244(b)(2). “Even if a petitioner can demonstrate that he qualifies for one of these 20 exceptions, he must seek authorization from the court of appeals before filing his new 21 petition with the district court.” Woods v. Carey,

(9th Cir. 2008). 22 CONCLUSION 23 Because there is no indication Petitioner has obtained permission from the Ninth 24 Circuit Court of Appeals to file a successive petition, this Court cannot consider his 25

26 1 It appears Petitioner submitted an Application for Permission to File a Second or Successive Habeas 27 Corpus Petition with the United States Court of Appeals for the Ninth Circuit on December 19, 2022. That 28 application is currently pending. See Sundberg v. Oreol, No. 22-2048 (9th Cir. Dec. 19. 2022), ECF No. 1 || Petition. Accordingly, the Court DISMISSES this action without prejudice to Petitioner 2 || filing a petition in this court if he obtains the necessary order from the Ninth Circuit Court 3 Appeals. Further, because Petitioner has failed to make “a substantial showing of the 4 ||denial of a constitutional right,” and reasonable jurists would not find debatable this 5 || Court’s assessment of his claims, the Court DENIES a certificate of appealability. See 28 6 || U.S.C. § 2253(c); see also Rules Governing § 2254 Cases, Rule 11(a) (requiring the district 7 court that issues an order denying a habeas petition to either grant or deny a certificate of 8 || appealability). 9 IT IS SO ORDERED. 10 |! Dated: January 17, 2023 ( é XK Hon. Cathy Ann Bencivengo 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28