Smith v. Foulk

Filing 12

ORDER signed by Magistrate Judge Kendall J. Newman on 6/6/2014 DENYING plaintiff's 9 request for a certificate of appealability; the Clerk shall send plaintiff a copy of the court's order filed 12/18/13 together with service of this order; and plaintiff is INFORMED that the court will not consider or address any further filing in this action.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CHARLES R. SMITH,

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No. 2:13-cv-02387-KJN P

Petitioner,
V.

ORDER

FRED FOULK, Warden,
Respondent.

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Petitioner is a state prisoner, proceeding pro se and in forma pauperis, in this habeas

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corpus action filed pursuant to 28 U.S.C. § 2254. Petitioner consented to the jurisdiction of the

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undersigned magistrate judge for all purposes. See 28 U.S.C. § 636(c); Local Rule 305(a). On

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December 18, 2013, the undersigned dismissed this action without prejudice, on the ground that

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the instant petition is successive. (See ECF No. 6.) Plaintiff was directed to seek leave from the

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Ninth Circuit Court of Appeals authorizing this court to consider the petition in a newly-filed

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action. 28 U.S.C. § 2244(b)(3). For this reason, the court declined to issue the certificate of

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appealability referenced in 28 U.S.C. § 2253.

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Now, five months later, plaintiff requests a certificate of appealability, based on the

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alleged merits of his underlying petition. Plaintiff is informed that he does not require a

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certificate of appealability to seek leave from the Court of Appeals to proceed with a successive

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petition. Therefore, for the reasons previously stated, petitioner’s request will be denied.
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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for a certificate of appealability (ECF No. 9) is denied.

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2. The Clerk of Court is directed to send plaintiff, together with service of this order, a

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copy of the court’s order filed December 18, 2013 (ECF No. 6).
3. Plaintiff is informed that the court will not consider or address any further filings in
this action.
SO ORDERED.
Dated: June 6, 2014

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/smit2387.noCOA

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