Muszynski v. Grounds
Filing
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ORDER OF DISMISSALE and ORDER granting 4 MOTION for Leave to Proceed in forma pauperis filed by Mark S. Muszynski.. Signed by Judge Charles R. Breyer on 6/19/2012. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 6/20/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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MARK S. MUSZYNSKI, P72738,
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Petitioner,
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vs.
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RANDY GROUNDS, Warden,
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Respondent.
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No. C 12-2021 CRB (PR)
ORDER OF DISMISSAL
(Docket # 4)
Petitioner, a state prisoner at the Correctional Training Facility in Soledad,
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California, has filed a second or successive petition for a writ of habeas corpus
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under 28 U.S.C. § 2254. His first petition was dismissed as untimely. See
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Muszynski v. Small, No. C 08-4244 CRB (PR) (N.D. Cal. Dec. 8, 2009) (order
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granting motion to dismiss petition as untimely under 28 U.S.C. § 2244(d)).
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A second or successive petition may not be filed in this court unless
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petitioner first obtains from the United States Court of Appeals for the Ninth
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Circuit an order authorizing this court to consider the petition. See 28 U.S.C. §
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2244(b)(3)(A); see also McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (§
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2244(b) applies where first petition was dismissed as untimely because such
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dismissal constitutes disposition on merits). Petitioner has not obtained such an
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order from the Ninth Circuit. The instant petition accordingly is DISMISSED
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without prejudice to refiling if petitioner obtains the necessary order.
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Based solely on petitioner's affidavit of poverty, his motion (docket # 4) to
proceed in forma pauperis is granted.
The clerk shall terminate all pending motions as moot and close the file.
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SO ORDERED.
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DATED: June 19, 2012
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CHARLES R. BREYER
United States District Judge
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G:\PRO-SE\CRB\HC.12\Muszynski, M.12-2021.dismissal.wpd
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