Aubineau v. Gonzales

Filing 4

ORDER of Dismissal. Signed by Judge Edward M. Chen on 5/20/2012. (Attachments: # 1 Certificate of Service). (emcsec, COURT STAFF) (Filed on 5/30/2012)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DOUGLAS PAUL AUBINEAU,

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Petitioner,
v.

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For the Northern District of California

United States District Court

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No. C-12-1020 EMC (pr)

MRS. GONZALES, CMC Warden,

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ORDER OF DISMISSAL

Respondent.
___________________________________/

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Douglas Paul Aubineau, a prisoner incarcerated at the California Men's Colony in San Luis

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Obispo, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge

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his 1997 conviction from the Santa Clara County Superior Court. The petition is not his first federal

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habeas petition concerning his 1997 conviction. His earlier habeas petition in Aubineau v. Duncan,

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No. C 00-20364 JF, was denied on March 5, 2003, and no appeal was taken.

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A second or successive petition may not be filed in this Court unless the Petitioner first

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obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this Court

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to consider the petition. 28 U.S.C. § 2244(b)(3)(A).

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Aubineau has not obtained an order from the Ninth Circuit permitting the filing of a second

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or successive petition. This Court will not entertain a new petition from Aubineau until he first

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obtains permission from the Ninth Circuit to file such a petition. This action is DISMISSED

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without prejudice to Aubineau filing a petition in this Court after he obtains the necessary order

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from the Ninth Circuit.

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If Aubineau wants to attempt to obtain the necessary order from the Ninth Circuit, he should
very clearly mark the first page of his document as an "APPLICATION FOR LEAVE TO FILE

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SECOND OR SUCCESSIVE PETITION UNDER 28 U.S.C. § 2254" rather than labeling it as a

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habeas petition because the Ninth Circuit clerk's office is apt to simply forward to this Court any

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document labeled as a habeas petition. He also should mail the application to the Ninth Circuit (at

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95 Seventh Street, San Francisco, CA 94103), rather than to this Court. In his application to the

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Ninth Circuit, he should explain how he meets the requirements of 28 U.S.C. § 2244(b).

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The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: May 30, 2012

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For the Northern District of California

United States District Court

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_________________________
EDWARD M. CHEN
United States District Judge

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