Hill v. The State of California

Filing 3

ORDER OF DISMISSAL; DENYING 2 MOTION TO HOLD PETITION IN ABEYANCE. Signed by Judge Maxine M. Chesney on June 27, 2007. (mmcsec, COURT STAFF) (Filed on 6/27/2007)

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Hill v. The State of California Doc. 3 Case 3:07-cv-03170-MMC Document 3 Filed 06/27/2007 Page 1 of 2 1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA THARON B. HILL, ) ) Petitioner, ) ) v. ) ) STATE OF CALIFORNIA, ) ) Respondent. ) ______________________________ ) No. C 07-3170 MMC (PR) ORDER OF DISMISSAL; DENYING MOTION TO HOLD PETITION IN ABEYANCE (Docket No. 2) On June 15, 2007, petitioner, a California prisoner proceeding pro se, filed the abovetitled petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254, challenging a conviction and sentence on murder charges brought in Butte County Superior Court in 1988. On June 22, 2007, petitioner filed a "Motion to Hold Writ of Habeas Corpus in Abeyance," in which he indicates he previously filed a federal habeas petition challenging the same conviction and sentence. A second or successive petition may not be filed in the district court unless the petitioner first obtains from the appropriate United States Court of Appeals an order authorizing the district court to consider such petition. See 28 U.S.C. 2244(b)(3)(A). In support of the instant motion, petitioner states that he "in his haste made a gross error when failing to apply" to the United States Court of Appeals for the Ninth Circuit for permission to file a second or successive petition. Petitioner cites no authority, and this Court is aware of none, permitting a district court to hold "in abeyance" a second or successive petition that the Court of Appeals has not authorized the district court to consider under 2244(b)(3)(A), and Dockets.Justia.com Case 3:07-cv-03170-MMC Document 3 Filed 06/27/2007 Page 2 of 2 1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 the statute itself provides for no such relief; indeed the statute expressly requires that the authorization from the Court of Appeals be obtained "before" the second or successive petition is "filed" in district court. See id. Accordingly, petitioner's motion to hold the instant petition in abeyance is hereby DENIED and the instant petition is hereby DISMISSED without prejudice to refiling after petitioner obtains the necessary authorization from the Ninth Circuit. The Clerk shall close the file and terminate Docket No. 2. IT IS SO ORDERED. DATED: June 27, 2007 _________________________ MAXINE M. CHESNEY United States District Judge 2

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