Hiep Huy Nguyen v. Josie Gastelo

Filing 10

ORDER DISMISSING CASE. Signed by Judge Nandor J. Vadas on 12/16/2016. (Attachments: # 1 Certificate/Proof of Service)(njvlc1, COURT STAFF) (Filed on 12/16/2016)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 EUREKA DIVISON 7 8 HIEP HUY NGUYEN, Case No. 16-cv-5528-NJV (PR) Petitioner, 9 v. ORDER OF DISMISSAL 10 11 JOSIE GASTELO, United States District Court Northern District of California Respondent. 12 13 14 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant 15 to 28 U.S.C. § 2254. Petitioner challenges a 1998 conviction in Santa Clara County, so venue is 16 proper here. See 28 U.S.C. § 2241(d). Court records indicated that petitioner already filed a 17 habeas corpus petition in this court challenging the same conviction. See Nguyen v. Veale, Case 18 No. 06-cv-4198-MJJ. Petitioner’s prior case was dismissed with prejudice as barred by the statute 19 of limitations. The present case appeared to be a successive petition, therefore the court ordered 20 petitioner to show cause why this case should not dismissed. (Doc. 8.) Petitioner has filed a 21 response. (Doc. 9.) 22 “A claim presented in a second or successive habeas corpus application under section 23 2254 that was not presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(2). 24 This is the case unless, 25 26 27 28 (A) the applicant shows that the claim relies on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable; or (B) (i) the factual predicate for the claim could not have been discovered previously through the exercise of due diligence; and (ii) the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by 1 2 clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense. 28 U.S.C. § 2244(b)(2). 3 “Before a second or successive application permitted by this section is filed in the district 4 court, the applicant shall move in the appropriate court of appeals for an order authorizing the 5 district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Petitioner has submitted a 6 response but has failed to demonstrate the he received authorization to file a new petition. The 7 case will therefore be dismissed. If petitioner obtains permission from the Ninth Circuit he may 8 refile this case. 9 CONCLUSION 10 The case is DISMISSED and a certificate of appealability is DENIED. 11 United States District Court Northern District of California IT IS SO ORDERED. 12 Dated: December 16, 2016 13 ________________________ NANDOR J. VADAS United States Magistrate Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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