Honesto v. Adams

Filing 7

ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS 6 . Signed by Judge Nathanael Cousins on 7/15/2015. (Attachments: # 1 Certificate/Proof of Service)(lmh, COURT STAFF) (Filed on 7/15/2014)

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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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No. C 14-2628 NC (PR)

PETER HONESTO,

ORDER OF DISMISSAL; GRANTING
LEAVE TO PROCEED IN FORMA
PAUPERIS

Petitioner,
v.
DERRAL ADAMS, Warden,

(Docket No. 6)

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Respondent.
United States District Court
For the Northern District of California

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Petitioner, a state prisoner, filed this pro se petition for writ of habeas corpus pursuant
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to 28 U.S.C. § 2254. He has also filed an application to proceed in forma pauperis.
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Petitioner filed a previous petition for writ of habeas corpus with this Court, challenging the
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same conviction and sentence. See Case No. C 06-0308 JF (PR). The Court dismissed the
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petition as untimely and entered judgment on March 7, 2011. This Court and the United
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States Court of Appeals for the Ninth Circuit denied a certificate of appealability. The
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United States Supreme Court denied petitioner’s petitions for writ of certiorari and rehearing.
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The Court finds the present petition is a second or successive petition attacking the
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same conviction and sentence as petitioner’s prior federal habeas petition. A successive
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petition may not be filed in this court unless petitioner first obtains from the United States
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Court of Appeals for the Ninth Circuit an order authorizing this Court to consider the
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petition. See 28 U.S.C. § 2244(b) (3)(A). Petitioner has not sought or obtained such an
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order from the United States Court of Appeals for the Ninth Circuit. Even if petitioner has
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new claims, he must still obtain the necessary authorization under Section 2244(b) from the
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United States Court of Appeals before he may proceed. The petition is accordingly
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DISMISSED without prejudice to 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 court to

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rule on whether a petitioner is entitled to a certificate of appealability in the same order in

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which the petition is decided. Petitioner has failed to make a substantial showing that a

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reasonable jurist would find this Court’s denial of his claim on procedural grounds debatable

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or wrong. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). Consequently, no certificate of

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appealability is warranted in this case.

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United States District Court
For the Northern District of California

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Petitioner’s motion for leave to proceed in forma pauperis, (Docket No. 6), is
GRANTED.
The Clerk is directed to enter judgment and close the file.
IT IS SO ORDERED.

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DATED:

July 15, 2014
NATHANAEL M. COUSINS
United States Magistrate

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