Evans v. Smith

Filing 11

ORDER OF DISMISSAL. Signed by Magistrate Judge Laurel Beeler on 5/16/2016. (Attachments: # 1 Application)(lsS, COURT STAFF) (Filed on 5/16/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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San Francisco Division

United States District Court
Northern District of California

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JAMES EVANS,

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Case No. 16-cv-01157-LB

Plaintiff,
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v.

ORDER OF DISMISSAL

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LAURIE SMITH,

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[Re: ECF No. 5 ]

Defendant.
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James Evans, currently incarcerated at the Santa Clara County Jail, has filed this pro se action

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for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He has consented to proceed before a

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magistrate judge. (ECF No. 7.)1 In his petition, Mr. Evans challenges his 2005 conviction and

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sentence from the Santa Clara County Superior Court.

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Mr. Evans is currently incarcerated on a 2015 conviction, and that his sentence on the 2015

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conviction was affected by the existence of the 2005 conviction and/or sentence. (ECF No. 8 at 1,

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4.) He filed an appeal from the 2015 conviction, and that the appellant’s opening brief in that

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appeal was filed on May 2, 2016. See People v. Evans, Cal. Ct. App. Case No. H042298 (docket

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sheet available at http://appellatecases.courtinfo.ca.gov.) This court does not read the petition in

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this action to be a challenge to the 2015 conviction, as the petition is clearly marked as challenging

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Citations are to the Electronic Case File (“ECF”); pin cites are to the ECF-generated page
numbers at the tops of the documents.

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the 2005 conviction. (ECF No. 5 at 1.) If Mr. Evans wishes to challenge his 2015 conviction, he

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may file a separate petition for writ of habeas corpus in this court, but not until after his state court

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remedies are exhausted.
The habeas petition in this action is not Mr. Evans’ first federal habeas petition concerning his

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2005 conviction and sentence. His first federal habeas petition challenging that conviction and

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sentence, Evans v. Gipson, No. C 11-3129 YGR, was dismissed on September 12, 2012, as

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untimely. No appeal was taken from the dismissal of that habeas petition.
A petitioner generally may not file more than one habeas petition in federal court to challenge

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a state court conviction/sentence. A second or successive habeas petition to challenge a conviction
and/or sentence may not be filed in this court unless the petitioner first obtains from the United

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United States District Court
Northern District of California

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States Court of Appeals for the Ninth Circuit an order authorizing this court to consider the

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petition. 28 U.S.C. § 2244(b)(3)(A).
Mr. Evans has not obtained an order from the Ninth Circuit permitting the filing of a second or

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successive habeas petition. This court will not entertain a new habeas petition from Mr. Evans

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challenging the 2005 conviction and/or sentence until he first obtains permission from the Ninth

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Circuit to file such a petition. This action is DISMISSED without prejudice to Mr. Evans filing a

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second or successive habeas petition in this court to challenge the 2005 conviction and/or sentence

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after he obtains the necessary order from the Ninth Circuit.

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If Mr. Evans wants to attempt to obtain the necessary order from the Ninth Circuit, he should

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

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

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order for his convenience.

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The clerk shall close the file.

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IT IS SO ORDERED.

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Dated: May 16, 2016
______________________________________
LAUREL BEELER
United States Magistrate Judge

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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JAMES EVANS,

Case No. 3:16-cv-01157-LB

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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LAURIE SMITH,
Defendant.

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United States District Court
Northern District of California

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

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That on May 16, 2016, I SERVED a true and correct copy(ies) of the attached, by 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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James Evans
F-06497 - Jail CLH006 - 16001590
Santa Clara County, Main Jail North
150 West Hedding St.
San Jose, CA 95110

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Dated: May 16, 2016

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
Lashanda Scott, Deputy Clerk to the
Honorable LAUREL BEELER
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