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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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

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