1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE E. SARMIENTO, Case No.: 25-cv-02023-AJB-MMP

12 Petitioner, ORDER: 13 v. (1) SUMMARILY DISMISSING 14 P. HORN, Warden, et al., SUCCESSIVE PETITION PURSUANT 15 Respondents. TO

(b)(3)(A) GATEKEEPER PROVISION; 16

17 (2) DENYING MOTION TO PROCEED IN FORMA PAUPERIS AS MOOT; AND 18

19 (3) DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 20

21 On August 4, 2025, Petitioner Jose E. Sarmiento (“Petitioner”), a state prisoner 22 proceeding pro se, filed a Petition for a Writ of Habeas Corpus under

23 challenging a May 26, 2017 San Diego Superior Court judgment of conviction and 24 resultant sentence of life without the possibility of parole plus 152 years in case number 25 SCN346521, along with a request to proceed in forma pauperis (“IFP”). (Doc. Nos. 1–2.) 26 On August 11, 2025, the Court denied Petitioner’s request to proceed IFP and dismissed 27 the Petition without prejudice on various grounds. (Doc. No. 3.) Petitioner has now paid 28 1 the filing fee and filed a First Amended Petition. (Doc. Nos. 6–7.) He has also filed a second 2 Motion to proceed IFP. (Doc. No. 8.) 3 PETITION CHALLENGING JUDGMENT IN CASE NUMBER SCN346521 4 BARRED BY GATEKEEPER PROVISION 5 This is not the first Petition for a Writ of Habeas Corpus Petitioner has submitted to 6 this Court challenging his 2017 San Diego County Superior Court judgment of conviction 7 in case number SCN346521. On May 18, 2020, Petitioner filed in this Court a Petition for 8 a Writ of Habeas Corpus challenging this same 2017 judgment of conviction and sentence 9 of life without the possibility of parole plus 152 years in case number SCN346521, of 10 which the Court takes judicial notice. (See Doc. No. 1 in Sarmiento v. Pfeiffer, S.D. Cal. 11 Case No. 20-cv-00930-WQH-AGS; see United States v. Wilson,

(9th 12 Cir. 1980) (“[A] court may take judicial notice of its own records in other cases, as well as 13 the records of an inferior court in other cases.”).) On November 9, 2022, the Court denied 14 that petition on the merits with prejudice. (See Doc. No. 45 in S.D. Cal. Case No. 20-cv- 15 00930-WQH-AGS.) 16 In the instant Petition, Petitioner again indicates he seeks to challenge the same 2017 17 judgment of conviction, which he again indicates resulted in a sentence of life without the 18 possibility of parole plus 152 years. (See Doc. No. 7 at 1.) Petitioner acknowledges that 19 this is not his first federal petition for a writ of habeas corpus challenging that judgment of 20 conviction. (See id. at 5.) “Before a second or successive application permitted by this 21 section is filed in the district court, the applicant shall move in the appropriate court of 22 appeals for an order authorizing the district court to consider the application.” 28 U.S.C. 23 § 2244(b)(3)(A); see also Burton v. Stewart,

(2007) (a petition is 24 “second or successive” where the petitioner challenges “the same custody imposed by the 25 same judgment of a state court” as in a prior petition). 26 Even were Petitioner able to demonstrate that his petition falls within the statutory 27 provisions allowing for permission to file a second or successive habeas petition, see 28

(b)(2)(A)–(B), Petitioner must still first obtain authorization from the Ninth 1 Circuit Court of Appeals to file a petition in this District. See

(b)(3)(A); 2 see also Morales v. Sherman,

, 476 (9th Cir. 2020) (per curiam) (recognizing 3 that

(b)(3)(A) is “a provision that bars district courts from entertaining a 4 second or successive petition unless its filing has first been authorized by the court of 5 appeals.”). In the instant case, Petitioner indicates that he has not obtained permission from 6 the Ninth Circuit Court of Appeals to file a second or successive petition (see Doc. No. 1 7 at 5), and the Court’s review of the Ninth Circuit’s electronic docket similarly does not 8 reflect that Petitioner has sought or obtained such permission from the Ninth Circuit. 9 Accordingly, this Court lacks jurisdiction to consider the instant federal Petition. 10 MOTION TO PROCEED IFP 11 Because Petitioner has paid the $5.00 filing fee, his second Motion to proceed IFP 12 is DENIED as moot. 13 CERTIFICATE OF APPEALABILITY 14 A certificate of appealability (“COA”) is required to appeal “the final order in a 15 habeas corpus proceeding in which the detention complained of arises out of process issued 16 by a State court,” and is warranted “only if the applicant has made a substantial showing 17 of the denial of a constitutional right.”

(c)(1)(A), (c)(2). “When the district 18 court denies a habeas petition on procedural grounds without reaching the prisoner’s 19 underlying constitutional claim, a COA should issue when the prisoner shows, at least, that 20 jurists of reason would find it debatable whether the petition states a valid claim of the 21 denial of a constitutional right and that jurists of reason would find it debatable whether 22 the district court was correct in its procedural ruling.” Slack v. McDaniel,

, 23 484 (2000). In the instant case, because Petitioner previously filed a petition challenging 24 his 2017 San Diego County judgment of conviction which was denied on the merits, and 25 there is no indication Petitioner has received permission from the Ninth Circuit Court of 26 Appeals to file a second or successive petition, the Court is not persuaded that Petitioner 27 has shown “jurists of reason would find it debatable whether the district court was correct” 28 in dismissing the instant petition for lack of authorization. See

(b)(3)(A);

(c); Burton,

; Slack,

. Accordingly, the 2 Court declines to issue a COA. 3 CONCLUSION 4 Because there is no indication that the Ninth Circuit Court of Appeals has granted 5 || Petitioner leave to file a second or successive petition challenging his 2017 judgment of 6 ||conviction in San Diego Superior Court case number SCN346521, this Court cannot 7 ||consider the Petition. Accordingly, the Court DISMISSES this habeas action without 8 || prejudice to Petitioner filing a petition in this Court challenging that judgment of conviction 9 ||if he obtains the necessary order from the Ninth Circuit Court of Appeals. The Court 10 || DENIES Petitioner’s second Motion to proceed IFP (Doc. No. 8) and DECLINES to issue 11 |}a COA. The Clerk of Court is directed to send Petitioner a blank Ninth Circuit Application 12 || for Leave to File a Second or Successive Petition Under

together with a 13 of this Order. The Clerk of Court is directed to close the case. 14 |} IT IS SO ORDERED. 15 || Dated: September 19, 2025 16 Hon. Anthony J haacka 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28