Mendoza v. Fraunheim

Filing 5

ORDER OF DISMISSAL OF SECOND SUCCESSIVE PETITION; DENYING CERTIFICATE OF APPEALABILITY. Signed by Judge Vince Chhabria on 4/16/2018. The deputy clerk hereby certifies that on 4/16/2018 a copy of this order was served by sending it via first-class mail to the address of each non-CM/ECF user listed on the Notice of Electronic Filing. (knm, COURT STAFF) (Filed on 4/16/2018)

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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ROBERTO ANTONIO MENDOZA, Case No. 18-cv-00351-VC (PR) Petitioner, v. SCOTT FRAUNHEIM, ORDER OF DISMISSAL OF SECOND SUCCESSIVE PETITION; DENYING CERTIFICATE OF APPEALABILITY Respondent. Roberto Antonio Mendoza, a state prisoner currently incarcerated at Corcoran State Prison, has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. He has paid the $5.00 filing fee. Mendoza filed two previous petitions, which challenged the same state conviction he challenges in this petition, Contra Costa County criminal case number 1005404. The first petition was dismissed as untimely on January 15, 2016 and a certificate of appealability was denied. See Mendoza v. Frauenheim, Case No. 15-0849 VC, Dkt No. 22, Order Granting Motion to Dismiss. On July 25, 2016, the Ninth Circuit Court of Appeals denied Mendoza’s request for a certificate of appealability. See Case No. 15-0849 VC, Dkt No. 29. The second petition was dismissed as a successive petition on January 13, 2017. See Mendoza v. Borders, Case No. 165654 VC, Dkt No. 7, Order of Dismissal. Therefore, Mendoza’s present petition is a second successive petition. See McNabb v. Yates, 576 F.3d 1028, 1029 (9th Cir. 2009) (dismissal of habeas petition as barred by the statute of limitations constitutes a disposition on the merits and a further petition challenging same conviction is a second or successive petition). A successive petition may not be filed in this court unless Mendoza first obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Mendoza has not obtained such an order from the Ninth Circuit. Therefore, the petition is DISMISSED without prejudice to refiling if Mendoza obtains the necessary order. A certificate of appealability will not issue. See 28 U.S.C. § 2253(c). This is not a case in which “reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The clerk shall close the file and enter judgment in accordance with this order. IT IS SO ORDERED. Dated: April 16, 2018 ______________________________________ VINCE CHHABRIA United States District Judge 2

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