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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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EUREKA DIVISON

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HIEP HUY NGUYEN,

Case No. 16-cv-5528-NJV (PR)

Petitioner,
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v.

ORDER OF DISMISSAL

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JOSIE GASTELO,

United States District Court
Northern District of California

Respondent.
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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus pursuant

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to 28 U.S.C. § 2254. Petitioner challenges a 1998 conviction in Santa Clara County, so venue is

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proper here. See 28 U.S.C. § 2241(d). Court records indicated that petitioner already filed a

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habeas corpus petition in this court challenging the same conviction. See Nguyen v. Veale, Case

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No. 06-cv-4198-MJJ. Petitioner’s prior case was dismissed with prejudice as barred by the statute

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of limitations. The present case appeared to be a successive petition, therefore the court ordered

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petitioner to show cause why this case should not dismissed. (Doc. 8.) Petitioner has filed a

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response. (Doc. 9.)

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“A claim presented in a second or successive habeas corpus application under section

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2254 that was not presented in a prior application shall be dismissed.” 28 U.S.C. § 2244(b)(2).

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This is the case unless,

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(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

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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).

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“Before a second or successive application permitted by this section is filed in the district
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court, the applicant shall move in the appropriate court of appeals for an order authorizing the
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district court to consider the application.” 28 U.S.C. § 2244(b)(3)(A). Petitioner has submitted a
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response but has failed to demonstrate the he received authorization to file a new petition. The
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case will therefore be dismissed. If petitioner obtains permission from the Ninth Circuit he may
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refile this case.
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CONCLUSION
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The case is DISMISSED and a certificate of appealability is DENIED.
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United States District Court
Northern District of California

IT IS SO ORDERED.
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Dated: December 16, 2016
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________________________
NANDOR J. VADAS
United States Magistrate Judge

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