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)

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