Bryant

Filing 11

ORDER OF DISMISSAL (Illston, Susan) (Filed on 3/15/2013)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES E. BRYANT,

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United States District Court
For the Northern District of California

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No. C 12-2821 SI (pr)

Petitioner,

ORDER OF DISMISSAL

v.
FERNANDO MATA,
Respondent.
/

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James E. Bryant, who apparently was on parole or in custody on a parole violation, filed

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a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 to challenge his parole.

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The court reviewed the petition and dismissed it with leave to amend. Bryant then filed an

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amended petition for writ of habeas corpus. The amended petition changes the focus of the

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action as it concerns errors that occurred in his sentencing in 1982 in San Francisco County

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Superior Court. He alleges, among other things, that the court clerk made purposeful errors on

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the abstract of judgment that caused him to spend extra time in prison, the superior court judge

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erred in allowing a prosecution after five years, and the superior court judge did not give him

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the right amount of time credits.

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The petition is not Bryant's first federal habeas petition concerning his 1982 conviction

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and sentence from the San Francisco County Superior Court. One petition was denied on the

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merits: Bryant v. Marshall, No C 91-1218 SBA. A later petition was dismissed as second or

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successive without petitioner having first obtained permission to file such a petition: Bryant v.

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Fairman, No. C 99-4624 MHP. Another later petition was dismissed as second or successive

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without petitioner having first obtained permission to file such a petition: Bryant v. Allison, No.

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C 10-2379 JF. Many of the claims in the current petition repeat claims asserted in the 2010

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action. See Bryant v. Allison, No. C 10-2379 JF (petition for writ of habeas corpus, pp. 3-4).

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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 ("Ninth Circuit") an order

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authorizing this court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Bryant has not

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obtained such an order from the Ninth Circuit. This court will not entertain a new petition from

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Bryant until he first obtains permission from the Ninth Circuit to file such a petition. This action

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is DISMISSED without prejudice to Bryant filing a petition in this court after he obtains the

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necessary order from the Ninth Circuit.

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If Bryant wants to attempt to obtain the necessary order from the Ninth Circuit, he should

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very clearly mark the first page of his document as a "MOTION FOR ORDER AUTHORIZING

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DISTRICT COURT TO CONSIDER SECOND OR SUCCESSIVE PETITION PURSUANT

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TO 28 U.S.C. § 2244(b)(3)(A)" rather than labeling it as a habeas petition because the Ninth

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Circuit clerk's office is apt to simply forward to this court any document labeled as a habeas

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petition. He also should mail the motion to the Ninth Circuit (at 95 Seventh Street, San

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Francisco, CA 94103), rather than to this court. In his motion to the Ninth Circuit, he should

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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: March 15, 2013
SUSAN ILLSTON
United States District Judge

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