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)

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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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BENNY A. ESPINOZA,

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Petitioner,

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No. C 13-0035 JSW (PR)
ORDER OF DISMISSAL

v.
G. LEWIS,
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 challenging a conviction and sentence obtained in state court.

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Petitioner’s prior petition to this Court challenging the same conviction and sentence was

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denied. Espinoza v. Walker No. 07-1741 JSW (PR) (N.D. Cal., Nov. 2, 2009). Both this

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Court and the United States Court of Appeals denied his requests for a certificate of

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appealability. 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 Circuit an

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order 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 United States Court of

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Appeals for the Ninth Circuit. Even if Petitioner has new claims, he must still obtain the

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necessary authorization under Section 2244(b) from the United States Court of Appeals

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before he may proceed. The petition is accordingly DISMISSED without prejudice to

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refiling if Petitioner obtains the 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. See Slack v. McDaniel, 529 U.S. 473, 484 (2000).

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Consequently, no certificate of appealability is warranted in this case.
The Clerk shall enter judgment and close the file.

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IT IS SO ORDERED.

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DATED: February 26, 2013

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For the Northern District of California

United States District Court

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JEFFREY S. WHITE
United States District Judge

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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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BENNY ESPINOZA,

Case Number: CV13-00035 JSW

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Plaintiff,

CERTIFICATE OF SERVICE

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v.

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G. LEWIS 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 February 26, 2013, I SERVED a true and correct copy(ies) of the attached, by
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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.

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17 Benny A. Espinoza
V90095

18 P.O. Box 7500

Crescent City, CA 95532

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Dated: February 26, 2013
Richard W. Wieking, Clerk
By: Jennifer Ottolini, Deputy Clerk