1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 Case No. 3:23-cv-1859-JO-MSB MATTHEW A. LAWRIE, 12 SUMMARY DISMISSAL OF Petitioner, 13 SUCCESSIVE PETITION v. PURSUANT TO 28 U.S.C. 14 § 2244(b)(3)(A) GATEKEEPER

15 PROVISION PARTICK COVELLO, Warden, 16 Respondent. 17 18 19 20 Petitioner filed a Petition for writ of habeas corpus pursuant to

, 21 along with a motion to proceed in forma pauperis (IFP), and a motion for appointment of 22 counsel. ECF Nos. 1–3. For the reasons set forth below, the habeas petition is dismissed 23 and the accompanying motions denied as moot. 24 Pursuant to

(b)(3)(A), habeas petitioners cannot bring a “second or 25 successive application for the same relief they already requested without proper 26 authorization. A federal habeas petition is “second” or “successive” if (1) the petitioner 27 filed a previous challenge to a state judgment; (2) a federal court issued a decision on the 28 merits regarding that challenge; and (3) the current petition makes “claims contesting the 1 same custody imposed by the same judgment of a state court.” Burton v. Stewart,

(2007); see also Slack v. McDaniel,

, 485–86 (2000). Before filing 3 such a petition in a district court, the petitioner must obtain from the appellate court “an 4 order authorizing the district court to consider the application.”

(b)(3)(A). 5 Without this authorization from the appellate court, the district court is without jurisdiction 6 to consider a second or successive petition. See Burton,

. 7 Here, Petitioner seeks relief from the same conviction that he previously challenged 8 before this Court twelve years ago. His instant habeas petition raises arguments 9 concerning his conviction in San Diego County Superior Court Case No. SCN160404. 10 ECF No. 1 at 1. Court records reflect Petitioner filed a previous habeas petition in 2010 11 challenging this same judgment of conviction in this court. See Lawrie v. Cate, No. 10-cv- 12 1034-DMS-PCL (S.D. Cal.). The district court denied the earlier petition on the merits on 13 October 5, 2011. See

ECF No. 19. On October 22, 2012, the United States Court of 14 Appeals for the Ninth Circuit denied a certificate of appealability. See

ECF No. 21. 15 Because Petitioner’s previous petition challenging the same conviction received a ruling 16 on the merits from the district court, the instant Petition is successive.1 Because there is 17 no indication Petitioner has obtained permission from the Ninth Circuit Court of Appeals 18 to file a successive petition, this Court lacks jurisdiction to consider the Petition and must 19 dismiss it. 20 CONCLUSION 21 Accordingly, the Court DISMISSES this action without prejudice to Petitioner 22 refiling after he obtains the necessary authorization from the Ninth Circuit Court of 23 Appeals. The motion to proceed IFP (ECF No. 2) and motion for appointment of counsel 24 (ECF No. 3) are DENIED as moot. Further, the Court finds no certificate of appealability 25 is warranted because Petitioner has not shown “jurists of reason” could debate or differ on 26

27 1 Petitioner filed another a petition for habeas corpus challenging the same conviction 28 (SCN160404) on June 27, 2016. See Lawrie v. Kernan, No. 16-cv-1656-JAH-DHB (S.D. Cal.). That 1 || whether the instant Petition is successive. See Slack,

. 2 IT IS SO ORDERED. 3 |} DATED: November 29, 2023 4 — 5 nsook Ohta ‘ United States District Judge

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