Washington v. McDonald

Filing 13

ORDER by Judge William Alsup granting 8 Motion to Dismiss (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 5/15/2012)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 VAN MONROE WASHINGTON, 12 13 No. C 11-4050 WHA (PR) Petitioner, 11 For the Northern District of California United States District Court 10 ORDER GRANTING MOTION TO DISMISS v. MIKE MCDONALD, Warden, (Docket No.8) 14 Respondent. / 15 16 Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus 17 pursuant to 28 U.S.C. 2254. Respondent has filed a motion to dismiss the petition on the 18 grounds that is a second or successive petition. Petitioner has filed an opposition, and 19 respondent has filed a reply brief. 20 Petitioner filed a prior federal habeas petition challenging the same state court judgment 21 that the instant petition challenges, and the prior petition was denied on its merits. See 22 Washington v. Runnels, No. C 03-1777 WHA (PR) (N.D. Cal. April 12, 2006). A second or 23 successive petition may not be filed in this court unless petitioner first obtains from the United 24 States Court of Appeals for the Ninth Circuit an order authorizing this court to consider the 25 petition. See 28 U.S.C. § 2244(b)(3)(A). Petitioner has not sought or obtained such an order 26 from the Ninth Circuit. Respondent’s motion to dismiss the petition (docket number 8) is 27 accordingly GRANTED and the petition is DISMISSED without prejudice to refiling if petitioner 28 obtains the necessary order from the Ninth Circuit. 1 Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district court to 2 rule on whether a petitioner is entitled to a certificate of appealability in the same order in 3 which the petition is dismissed. Petitioner has failed to make a substantial showing that 4 reasonable jurists would find it debatable whether the district court was correct in its procedural 5 ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of 6 appealability is warranted in this case. 7 The clerk shall enter judgment and close the file. 8 IT IS SO ORDERED. 9 Dated: May 15 , 2012. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 G:\PRO-SE\WHA\HC.11\WASHINGTON4050.MTD-SUC.wpd 25 26 27 28 2

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