Placencia v. Grounds

Filing 13

ORDER OF DISMISSAL. Signed by Judge Richard Seeborg on 12/15/10. (Attachments: # 1 Appendix Certificate of Service)(cl, COURT STAFF) (Filed on 12/15/2010)

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Placencia v. Grounds Doc. 13 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 *E-Filed 12/15/10* UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION JOHN PLACENCIA, Petitioner, v. R. GROUNDS, Warden, Respondent. / No. C 10-1323 RS (PR) ORDER OF DISMISSAL This is a federal habeas corpus action filed by a pro se state prisoner pursuant to 28 U.S.C. 2254. Respondent's motion to dismiss the petition as second or successive (Docket No. 11) is GRANTED. In 2009, petitioner filed a federal habeas petition in this Court in which he challenged his 2007 parole denial. See Cook v. Kane, No. 09-1633 RS (PR). The 2009 petition was denied on the merits. In 2010, petitioner filed the instant habeas petition, later amending it to challenge his 2007 parole denial. The filing of the 2010 petition raises the question whether the instant filing is a second or successive petition. A claim presented in a second or successive petition under 28 U.S.C. 2254 that was presented in a prior petition must be dismissed. See 28 U.S.C. 2244(b)(1); Babbitt v. Woodford, 177 F.3d 744, 74546 (9th Cir. 1999). A new factual basis for a claim previously No. C 10-1323 RS (PR) ORDER OF DISMISSAL Dockets.Justia.com 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 presented is not sufficient to prevent it from falling under this section. See id. at 746. In the 2009 and 2010 petitions, petitioner challenges his 2007 parole denial on grounds that it violated his right to due process, though in the 2010 petition he alleges a different factual basis for this claim. Accordingly, the 2010 petition is second or successive to the 2009 petition. In order to file a second or successive petition, the petitioner must obtain an order from the court of appeals authorizing the district court to consider the petition. See 28 U.S.C. 2244(b)(3)(A). Accordingly, the instant petition must be dismissed as second or successive to the prior-filed 2009 petition. Respondent's motion to dismiss the petition as second or successive (Docket No. 11) is GRANTED. The petition is DISMISSED WITH PREJUDICE. A certificate of appealability will not issue. Petitioner has not shown "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). The Clerk shall enter judgment in favor of respondent, terminate Docket No. 11, and close the file. IT IS SO ORDERED. DATED: December 15, 2010 RICHARD SEEBORG United States District Judge 2 No. C 10-1323 RS (PR) ORDER OF DISMISSAL

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