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)

Download PDF
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

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?