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