Cross v. Arnald

Filing 6

ORDER DISMISSING CASE; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge William Alsup on 5/10/17. (Attachments: # 1 Certificate/Proof of Service)(dl, COURT STAFF) (Filed on 5/11/2017)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 11 For the Northern District of California United States District Court 10 12 TERRELL CROSS, Petitioner, 13 14 15 No. C 17-1049 WHA (PR) ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS v. D. K. SISTO, Warden, (Dkt. Nos. 2, 4) 16 Respondent. / 17 18 Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus 19 pursuant to 28 U.S.C. 2254 challenging his criminal judgment from Alameda County Superior 20 Court, convicting him of murder, assault, possession of f firearm, and sentence enhancements, 21 and sentencing him to a term of 54 years to life in state prison. He has challenged the legality 22 of the same conviction and sentence in a prior petition for a writ of habeas corpus filed in 23 federal court. See Cross v. Sisto, No. C. 07-3941 WHA (PR). That petition was denied on the 24 merits, and last year the United States Court of Appeals denied a certificate of appealability. 25 Petitioner does not dispute these facts, but rather claims in the instant petition that there is 26 newly discovered evidence demonstrating his innocence, that he should have an evidentiary 27 hearing on that evidence, that he received ineffective assistance of counsel, and that there was a 28 miscarriage of justice. 1 A petition for a writ of habeas corpus challenging the same state court judgment as a 2 prior federal petition denied on its merits may not be filed in the district court unless the 3 petitioner first obtains from the United States Court of Appeals for the Ninth Circuit an order 4 authorizing the district court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Petitioner 5 has not sought or obtained such an order from the Ninth Circuit. There are no exceptions to this 6 requirement for newly discovered evidence or a miscarriage of justice. Petitioner may bring 7 those arguments in his request to the Ninth Circuit for authorization to file this successive 8 habeas petition. The instant petition is DISMISSED without prejudice to refiling if petitioner 9 obtains the necessary order from the Ninth Circuit. Leave to proceed in forma pauperis is GRANTED due to petitioner’s lack of funds. 11 For the Northern District of California United States District Court 10 No certificate of appealability is warranted in this case because a reasonable jurist would 12 not find the dismissal of this petition debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 13 (2000). 14 The clerk shall enter judgment and close the file. 15 IT IS SO ORDERED. 16 17 18 Dated: May 10 , 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 19 20 21 22 23 24 25 26 27 28 2

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