Nellum v. Diaz

Filing 2

ORDER OF DISMISSAL. Signed by Judge JEFFREY S. WHITE on 6/11/12. (jjoS, COURT STAFF) (Filed on 6/11/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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For the Northern District of California

United States District Court

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DASHAUN NELLUM,

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Petitioner,

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No. C 12-2679 JSW (PR)
ORDER OF DISMISSAL

v.
RALPH DIAZ, Warden,
Respondent.
/

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Petitioner, a state prisoner currently, has filed a petition for a writ of habeas

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corpus pursuant to 28 U.S.C. § 2254 challenging a conviction and sentence obtained in

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2000 in Contra Costa County Superior Court. His prior federal petition to challenging

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the same conviction and sentence was denied on its merits. Nellum v. McGrath, No. 03-

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1000 JSW (PR) (N.D. Cal. Aug. 3, 2005). The judgment of this Court was subsequently

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affirmed by the Ninth Circuit, Nellum v. McGrath, No. 05-16853, slip op. at 5 (9th Cir.

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Nov. 28, 2006), and the United States Supreme Court denied a petition for a writ of

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certiorari on June 29, 2007.

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

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

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

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Petitioner has not sought or obtained such an order from the Ninth Circuit. The instant

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petition is accordingly DISMISSED without prejudice to refiling if Petitioner obtains the

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necessary order.

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Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district

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court to rule on whether a Petitioner is entitled to a certificate of appealability in the

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same order in which the petition is decided. Petitioner has failed to make a substantial

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showing that a reasonable jurist would find this Court's denial of his claim on procedural

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grounds debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Consequently, no certificate of appealability is warranted in this case.

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For the Northern District of California

United States District Court

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The Clerk shall enter judgment and close the file.

IT IS SO ORDERED.
DATED: June 11, 2012
JEFFREY S. WHITE
United States District Judge

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2

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UNITED STATES DISTRICT COURT

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FOR THE

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NORTHERN DISTRICT OF CALIFORNIA

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DASHAUN NELLUM,

Case Number: CV12-02679 JSW

Plaintiff,

CERTIFICATE OF SERVICE

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v.

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RALPH DIAZ et al,

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Defendant.

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For the Northern District of California

United States District Court

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/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.

12 District Court, Northern District of California.
13 That on June 11, 2012, I SERVED a true and correct copy(ies) of the attached, by placing

said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
14 depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office
delivery receptacle located in the Clerk's office.

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17 Dashaun Nellum
P74141

18 P.O. Box 5244

Corcoran, CA 93212

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Dated: June 11, 2012
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk