Ritchie v. Bartos et al

Filing 3

IT IS THEREFORE ORDERED that Petitioner's Application to Proceed In Forma Pauperis is granted. Petitioner's Second Petition 1 and this action are dismissed and the Clerk of Court must enter judgment accordingly. Signed by Judge Stephen M McNamee on 7/30/07. (TLJ)

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Ritchie v. Bartos et al Doc. 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 WO RP IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Robert Ritchie, Petitioner, vs. Ivan Bartos, et al., Respondents. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 07-1362-PHX-SMM (DKD) ORDER Petitioner Robert Ritchie, who is confined in the Arizona State Prison ComplexLewis, has filed a second pro se Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 2254 (Second Petition) and an Application to Proceed In Forma Pauperis. The Court will dismiss the Second Petition and this action without prejudice. I. Application to Proceed In Forma Pauperis Petitioner's Application to Proceed In Forma Pauperis indicates that his inmate trust account balance is less than $25.00. Accordingly, the Application to Proceed In Forma Pauperis will be granted. See LRCiv 3.5(b). II. Second Petition In his Second Petition, Petitioner challenges his November 18, 1997 judgment of conviction for theft and fraudulent schemes entered in the Maricopa County Superior Court in matter #CR 96-12943. Petitioner names Ivan Bartos as Respondent and the Arizona Attorney General of the State of Arizona as an additional Respondent. Petitioner raises only Document - 1 - Filed 07/30/2007 3 Page 1 of 3 Dockets.Justia.com Case 2:07-cv-01362-SMM--DKD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 one ground for relief. Petitioner has not filled in the section of the court-approved form that asks if this is Petitioner's first federal petition for writ of habeas corpus challenging this conviction, and if it is not, whether the prior petition was denied, and whether the Ninth Circuit Court of Appeals has granted permission to file a successive petition. A search of this Court's docket reveals that Petitioner filed a previous pro se petition for writ of habeas corpus pursuant to 28 U.S.C. 2254 in this Court on April 17, 2002 (First Petition), case number of CV 02-719PHX-SMM. In this First Petition, Petitioner also challenged his judgment of conviction in the Maricopa County Superior Court in matter #CR 96-12943. By Order filed November 10, 2003 (Doc. #35 in CV 02-719-PHX-SMM), the Court adopted United States Magistrate Judge David K. Duncan's Report and Recommendation (Doc. #33) that the First Petition be denied and dismissed with prejudice, and denied the First Petition, terminating the case. Judgment was entered on November 10, 2003 (Doc. #36). On November 21, 2003, Petitioner filed a Notice of Appeal, and on May 25, 2004 the Ninth Circuit Court of Appeals denied Petitioner's request for a certificate of appealability. III. Dismissal of Second Petition Under 28 U.S.C. 2244(b)(3)(A), as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), before a second or successive 28 U.S.C. 2254 petition may be filed in the district court, a petitioner must first obtain an order from the United States Court of Appeals authorizing the district court to consider the petition. The Court of Appeals will not issue an order authorizing a successive petition unless the petition meets the requirements of 28 U.S.C. 2244(b)(A) and (B). On February 15, 2007, Petitioner applied to the Ninth Circuit Court of Appeals for leave to file a second or successive petition regarding his conviction and sentence in #CR 9612943. By Order filed April 6, 2007, the Ninth Circuit denied his application (Doc. #48 in CV 02-719-PHX-SMM). Accordingly, the Second Petition, as well as this action will be dismissed. IT IS THEREFORE ORDERED: (1) Petitioner's Application to Proceed In Forma Pauperis, filed with the Second -2Document 3 Filed 07/30/2007 Page 2 of 3 Case 2:07-cv-01362-SMM--DKD 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petition, is granted. (2) Petitioner's Second Petition (Doc. #1) and this action are dismissed and the Clerk of Court must enter judgment accordingly. DATED this 30th day of July, 2007. Case 2:07-cv-01362-SMM--DKD -3Document 3 Filed 07/30/2007 Page 3 of 3

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