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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM EDWARD BROWN,

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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

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habeas corpus pursuant to 28 U.S.C. § 2254, together with an application to proceed in forma

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pauperis. Petitioner consented to the jurisdiction of the undersigned. (ECF No. 6.)

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Examination of the in forma pauperis application reveals that petitioner is unable to afford

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the costs of suit. Accordingly, the application to proceed in forma pauperis will be granted. See

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28 U.S.C. § 1915(a).

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Petitioner challenges the validity of his 2002 conviction from Placer County for two

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counts of robbery. Court records indicate that petitioner filed a previous action in this court

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challenging the same conviction, Brown v. Felker, 06-cv-1086 FCD KJM P. On August 22,

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2008, 06-cv-1086 was dismissed on grounds that it was barred by the statute of limitations.

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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
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authorizing the district court to consider the application. Generally speaking, a petition is a

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second or successive petition if it raises claims that were or could have been adjudicated on the

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merits in a previous petition. Cooper v. Calderon, 274 F.3d 1270, 1273 (9th Cir. 2001).

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Moreover, although a dismissal based upon the statute of limitations does not include an

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examination of the merits of the underlying substantive claims presented in the petition, such a

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dismissal is considered an adjudication of the merits for purposes of determining whether a

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subsequent petition is successive. McNabb v. Yates, 576 F.3d 1028, 1030 (9th Cir. 2009).

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The instant petition is a second or successive petition based on the dismissal of

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petitioner’s previous petition in this court challenging the same conviction. This court must

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dismiss any claim presented in a second of successive habeas application under section 2254

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unless the Court of Appeals has given petitioner leave to file the petition. 28 U.S.C. § 2244(b)(1).

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Because the Ninth Circuit Court of Appeals has not given petitioner leave to file the instant

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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

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made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(3).

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Petitioner’s motion to proceed in forma pauperis is granted;

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2. This action is dismissed; and

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3. A certificate of appealability is not issued.

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Dated: March 19, 2014

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Br344.osc

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