Duong v. Santoro

Filing 5

ORDER OF DISMISSAL, granted: 4 MOTION for Leave to Proceed in forma pauperis filed by Senh Duong. Signed by Judge Charles R. Breyer on 10/14/2016. (Attachments: # 1 Certificate/Proof of Service)(beS, COURT STAFF) (Filed on 10/18/2016)

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1 2 3 IN THE UNITED STATES DISTRICT COURT 4 FOR THE NORTHERN DISTRICT OF CALIFORNIA 5 6 SENH DUONG, P18489, Petitioner, 7 8 9 10 ) ) ) ) ) ) ) ) ) ) vs. KELLY SANTORO, Warden, Respondent. No. C 16-5048 CRB (PR) ORDER OF DISMISSAL (ECF No. 4) 11 Petitioner, a state prisoner currently incarcerated at North Kern State 12 Prison, has filed a second or successive petition for a writ of habeas corpus under 13 28 U.S.C. § 2254. His first petition was denied on the merits on July 31, 2003. 14 See Duong v. McGrath, No. 03-0127 CRB (N.D. Cal. July 31, 2003) (order). 15 A second or successive petition may not be filed in this court unless 16 petitioner first obtains from the United States Court of Appeals for the Ninth 17 Circuit an order authorizing this court to consider the petition. See 28 U.S.C. § 18 2244(b)(3)(A). Petitioner has not obtained such an order from the Ninth Circuit. 19 The petition accordingly is DISMISSED without prejudice to refiling if petitioner 20 obtains the necessary order. 21 But based solely on petitioner’s affidavit of poverty, his application to 22 proceed in forma pauperis (ECF No. 4) under 28 U.S.C. § 1915 is GRANTED. 23 The clerk shall close the file, terminate all pending motions as moot and 24 enter judgment in accordance with this order. 25 SO ORDERED. 26 DATED: Oct. 14, 2016 27 28 CHARLES R. BREYER United States District Judge G:\PRO-SE\CRB\HC.16\Duong, Seh.16-5048.dismissal.wpd

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