Sanders v. Grounds

Filing 6

ORDER DISMISSING PETITION AS SECOND OR SUCCESSIVE. Signed by Judge Vaughn R Walker on 11/5/2010. (Attachments: # 1 proof of service)(cgk, COURT STAFF) (Filed on 11/8/2010)

Sanders v. Grounds

Doc. 6

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 Petitioner, a state prisoner incarcerated at the Correctional Training Facility in Soledad, California, has filed a second or successive petition for a writ of habeas corpus under 28 USC § 2254. Petitioner was convicted by a jury of second degree The jury also found that petitioner v RANDY GROUNDS, Warden, Respondent. / SHEPARD SANDERS, Petitioner, ORDER DISMISSING PETITION AS SECOND OR SUCCESSIVE No C-10-3702 VRW (PR) IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

robbery on October 15, 1997.

had suffered two prior juvenile adjudications, which counted as "strikes" under California's Three Strikes law. petitioner to 25 years to life in prison. On appeal, the California Court of Appeal affirmed petitioner's robbery conviction, but found that the trial court did not make the necessary findings to use one of his prior juvenile The court sentenced

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adjudication as a strike.

The court reversed petitioner's sentence

and remanded the case to the trial court to make the necessary findings. On remand, the trial court made the required finding to use petitioner's prior adjudication as a strike and again sentenced him to 25 years to life. The California Court of Appeal affirmed

the sentence in an unpublished opinion, rejecting petitioner's claim of ineffective assistance of appellate counsel for failure to challenge the sufficiency of the evidence of the prior conviction allegations. See People v Sanders/In re Sanders, Nos A091833, The Id.

A093545, 2002 WL 1154585, at *5­6 (Cal Ct App May 30, 2002). Supreme Court of California denied review on August 14, 2002.

Petitioner then filed a federal petition for a writ of habeas corpus, see Sanders v Brown, No C 02-4195 VRW (PR) (ND Cal filed Sept 4, 2002), which the court denied. 19, 2004 (order denying petition)). See id, Doc #15 (April

Among several of the claims the

court rejected was ineffective assistance of appellate counsel due to counsel's failure to raise the sufficiency of the evidence of the prior strike convictions alleged against petitioner. #15 at 21­24. See id, Doc

On August 20, 2010, petitioner filed the instant See

petition for habeas corpus, raising essentially the same claim.

Sanders v Grounds, No C 10-3702-VRW (PR) (ND Cal filed August 20, 2010), Doc #1 at 6­8. A second or successive petition may not be filed in the district court unless the petitioner first obtains from the appropriate federal court of appeals an order authorizing the district court to consider the petition. 2 28 USC § 2244(b)(3)(A).

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Petitioner has not obtained an order from the Ninth Circuit authorizing this court to consider his current petition. Accordingly, the petition is DISMISSED without prejudice subject to refiling if petitioner obtains the necessary order. The clerk shall close the file and terminate any pending motions as moot. IT IS SO ORDERED.

VAUGHN R WALKER United States District Chief Judge

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