Espinoza v. Lewis
Filing
3
ORDER OF DISMISSAL. Signed by Judge JEFFREY S. WHITE on 2/26/13. (jjoS, COURT STAFF) (Filed on 2/26/2013)
1
2
3
4
5
6
7
IN THE UNITED STATES DISTRICT COURT
8
9
FOR THE NORTHERN DISTRICT OF CALIFORNIA
11
For the Northern District of California
United States District Court
10
BENNY A. ESPINOZA,
12
Petitioner,
13
14
15
No. C 13-0035 JSW (PR)
ORDER OF DISMISSAL
v.
G. LEWIS,
Respondent.
/
16
17
Petitioner, a state prisoner currently, has filed a petition for a writ of habeas
18
corpus pursuant challenging a conviction and sentence obtained in state court.
19
Petitioner’s prior petition to this Court challenging the same conviction and sentence was
20
denied. Espinoza v. Walker No. 07-1741 JSW (PR) (N.D. Cal., Nov. 2, 2009). Both this
21
Court and the United States Court of Appeals denied his requests for a certificate of
22
appealability. A second or successive petition may not be filed in this court unless
23
petitioner first obtains from the United States Court of Appeals for the Ninth Circuit an
24
order authorizing this Court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A).
25
Petitioner has not sought or obtained such an order from the United States Court of
26
Appeals for the Ninth Circuit. Even if Petitioner has new claims, he must still obtain the
27
necessary authorization under Section 2244(b) from the United States Court of Appeals
28
before he may proceed. The petition is accordingly DISMISSED without prejudice to
1
refiling if Petitioner obtains the necessary order.
2
Rule 11(a) of the Rules Governing Section 2254 Cases now requires a district
3
court to rule on whether a Petitioner is entitled to a certificate of appealability in the
4
same order in which the petition is decided. Petitioner has failed to make a substantial
5
showing that a reasonable jurist would find this Court's denial of his claim on procedural
6
grounds debatable or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).
7
Consequently, no certificate of appealability is warranted in this case.
The Clerk shall enter judgment and close the file.
9
IT IS SO ORDERED.
10
DATED: February 26, 2013
11
For the Northern District of California
United States District Court
8
JEFFREY S. WHITE
United States District Judge
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2
1
UNITED STATES DISTRICT COURT
2
FOR THE
3
NORTHERN DISTRICT OF CALIFORNIA
4
5
BENNY ESPINOZA,
Case Number: CV13-00035 JSW
6
Plaintiff,
CERTIFICATE OF SERVICE
7
v.
8
G. LEWIS et al,
9
Defendant.
11
For the Northern District of California
United States District Court
10
/
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 February 26, 2013, I SERVED a true and correct copy(ies) of the attached, by
14
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter
listed, by 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.
15
16
17 Benny A. Espinoza
V90095
18 P.O. Box 7500
Crescent City, CA 95532
19
20
21
22
23
24
25
26
27
28
Dated: February 26, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?