Joseph v. Knipp

Filing 7

ORDER signed by Magistrate Judge Gregory G. Hollows on 4/30/12 ORDERING that the instant petition be transferred to the Ninth Circuit Court of Appeals for consideration as a successive petition. (Dillon, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ALONZO JOSEPH,
Petitioner,

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vs.

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No. CIV S-12-1061 GGH P

WILLIAM KNIPP,

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Respondent.

ORDER
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Petitioner is a state prisoner proceeding pro se with an application for writ of

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habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has consented to the jurisdiction of the

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undersigned. Docket # 3. Petitioner challenges his 1997 Sacramento County Superior Court

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conviction for burglary and receiving stolen property for which he received a sentence of 25-

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years-to-life plus ten years. The grounds of his petition include 1) a claim of ineffective

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assistance of counsel in not investigating or presenting evidence regarding his mental health and

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2) a claim involving exculpatory evidence in the form of three other people confessing to the

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crimes, i.e., a claim of actual innocence.

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Court records reveal that petitioner has previously filed an application for a writ of

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habeas corpus challenging his 1997 Sacramento County Superior Court conviction and sentence.

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His original application was filed on January 3, 2000, and was denied on the merits on August 4,
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2003. Joseph v. Pliler, CIV No. S-00-0004 EJG GGH P. A subsequent application was

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transferred to the Ninth Circuit Court of Appeals for consideration as a successive petition on

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November 29, 2004. Joseph v. Knowles, CIV No. S-04-1780 MCE GGH P. No authorization

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from the Ninth Circuit to proceed in that case was forthcoming per the case docket.
This appears to be petitioner’s second successive petition. As such, it must be

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authorized by the Ninth Circuit before petitioner may proceed. See 28 U.S.C. 2244(b)(3); Rule

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9, Rules Governing Section 2254 Cases. Under Ninth Circuit Rule 22-3, “[i]f a second or

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successive petition or motion, or an application for leave to file such an application or motion, is

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mistakenly submitted to the district court, the district court shall refer it to the court of appeals.”1

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Accordingly, IT IS ORDERED that the instant petition be transferred to the Ninth

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Circuit Court of Appeals for consideration as a successive petition.

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DATED: April 30, 2012
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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GGH:009

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jose1061.scs

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The court has not ruled on petitioner’s application to proceed in forma pauperis, see U.S.C.
§§ 1914(a); 1915(a), as no filing fee is required in the Court of Appeals under Ninth Circuit Rule
22-3(a).
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