White v. CDCR and Board of Prison Term et al

Filing 7

ORDER of Dismissal. Signed by Judge Edward M. Chen on 8/28/2014. (Attachments: # 1 Exhibit, # 2 Certificate/Proof of Service). (emcsec, COURT STAFF) (Filed on 8/28/2014)

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

DIWON WHITE,

9

Petitioner,
v.

11
For the Northern District of California

United States District Court

10

No. C-14-1958 EMC (pr)

JEFFREY BEARD,

12

ORDER OF DISMISSAL

Respondent.
___________________________________/

13
14

Petitioner, a prisoner incarcerated at Folsom State Prison, has filed a petition for writ of

15

habeas corpus to challenge his conviction from Contra Costa County Superior Court in the mid-

16

1990s. The petition is not his first federal habeas petition concerning that conviction. His earlier

17

habeas petition in White v. Pliler, No. C 00-2298 MHP, was dismissed as untimely on January 11,

18

2011.1 No appeal was taken from that dismissal.

19

A second or successive petition may not be filed in this Court unless the petitioner first

20

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

21

to consider the petition. 28 U.S.C. § 2244(b)(3)(A). This rule even applies when the previous

22

petition was dismissed as barred by the statute of limitations which constitutes a disposition on the

23
24
25
26
27
28

1

The orders in the 2000 case did not identify the particular crime of which Petitioner had
been convicted. The Court has used the following information to determine that the present case and
the 2000 case pertain to the same conviction: (a) the petitioner in each case has the same CDCR
number, (b) both cases challenge a conviction from Contra Costa County Superior Court, (c) both
cases identify the California Court of Appeal’s decision as having been issued in 1995, and (d) the
California court website lists only one appeal from this prisoner having been decided in 1995,
People v. White, Cal. Ct. App. No. A065113.

1

merits. McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009); Murray v. Greiner, 394 F.3d 78, 81

2

(2d Cir. 2005).

3

Petitioner has not obtained an order from the Ninth Circuit permitting the filing of a second

4

or successive petition. This Court will not entertain a new petition from Petitioner until he first

5

obtains permission from the Court of Appeals for the Ninth Circuit to file such a petition. This

6

action is DISMISSED without prejudice to Petitioner filing a petition in this Court after he obtains

7

the necessary order from the Court of Appeals for the Ninth Circuit.

8

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

Seventh Street, San Francisco, CA 94103). A copy of the form application is enclosed with this

11
For the Northern District of California

file an “Application For Leave To File Second Or Successive Petition” in the Ninth Circuit (at 95

10

United States District Court

9

order for his convenience.

12

The Clerk shall close the file.

13
14

IT IS SO ORDERED.

15
16

Dated: August 28, 2014

17
_________________________
EDWARD M. CHEN
United States District Judge

18
19
20
21
22
23
24
25
26
27
28

2