Brown v. Corcoran State Prison

Filing 8

ORDER signed by Magistrate Judge Kendall J. Newman on 3/19/14 GRANTING 7 Motion to Proceed IFP; this action is DISMISSED; and a certificate of appealability is not issued.(Dillon, M)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 WILLIAM EDWARD BROWN, 12 13 14 15 16 17 No. 2:14-cv-0344 KJN P Petitioner, v. ORDER WARDEN OF CORCORAN STATE PRISON, Respondents. Petitioner, a state prisoner proceeding without counsel, has filed a petition for a writ of 18 habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma 19 pauperis. Petitioner consented to the jurisdiction of the undersigned. (ECF No. 6.) 20 Examination of the in forma pauperis application reveals that petitioner is unable to afford 21 the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See 22 28 U.S.C. § 1915(a). 23 Petitioner challenges the validity of his 2002 conviction from Placer County for two 24 counts of robbery. Court records indicate that petitioner filed a previous action in this court 25 challenging the same conviction, Brown v. Felker, 06-cv-1086 FCD KJM P. On August 22, 26 2008, 06-cv-1086 was dismissed on grounds that it was barred by the statute of limitations. 27 28 Title 28 U.S.C. § 2244(b)(3)(A) provides that before a second of successive petition is filed in the district court, the applicant shall move in the appropriate court of appeals for an order 1 1 authorizing the district court to consider the application. Generally speaking, a petition is a 2 second or successive petition if it raises claims that were or could have been adjudicated on the 3 merits in a previous petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001). 4 Moreover, although a dismissal based upon the statute of limitations does not include an 5 examination of the merits of the underlying substantive claims presented in the petition, such a 6 dismissal is considered an adjudication of the merits for purposes of determining whether a 7 subsequent petition is successive. McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009). 8 The instant petition is a second or successive petition based on the dismissal of 9 petitioner’s previous petition in this court challenging the same conviction. This court must 10 dismiss any claim presented in a second of successive habeas application under section 2254 11 unless the Court of Appeals has given petitioner leave to file the petition. 28 U.S.C. § 2244(b)(1). 12 Because the Ninth Circuit Court of Appeals has not given petitioner leave to file the instant 13 second or successive petition, this action must be dismissed. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if the applicant has 14 15 made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3). 16 In accordance with the above, IT IS HEREBY ORDERED that: 17 1. Petitioner’s motion to proceed in forma pauperis is granted; 18 2. This action is dismissed; and 19 3. A certificate of appealability is not issued. 20 Dated: March 19, 2014 21 22 Br344.osc 23 24 25 26 27 28 2

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