Alexander v. Davis
Filing
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ORDER GRANTING MOTION TO DISMISS by Judge William Alsup granting 10 Motion to Dismiss. (Attachments: # 1 Certificate/Proof of Service)(tlS, COURT STAFF) (Filed on 10/9/2019)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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RICKEY ALEXANDER,
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Petitioner,
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No. C 19-2596 WHA (PR)
ORDER GRANTING MOTION TO
DISMISS
v.
(Dkt. No. 10)
For the Northern District of California
United States District Court
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RONALD DAVIS, Warden,
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Respondent.
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Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28
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U.S.C. § 2254. Respondent has filed a motion to dismiss the petition because it is a second or
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successive petition. Because this issue can be readily decided based upon the petition, the
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motion, the court dockets, and other court records, there is no need for an opposition or a reply
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brief.
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A second or successive petition may not be filed in this court unless petitioner first
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obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this
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court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). This requirement is
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jurisdictional. Burton v. Stewart, 549 U.S. 147, 156 (2007) (per curiam). In 1999, petitioner
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filed a habeas petition in federal court challenging a 1992 state court judgment sentencing him
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to 20 years to life in state prison. See Alexander v. Newland, No. C 99-3117 WHA (PR). The
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petition was denied on its merits in 2005, and affirmed on appeal in 2006, see Alexander v.
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Newland, No. 05-16222.
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The instant petition challenges the same judgment. Petitioner has not, however, sought
or obtained the necessary authorization from the United States Court of Appeals for the Ninth
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Circuit to file a second or successive petition under Section 2244(b)(3)(A). Therefore, this is a
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second habeas petition that must be dismissed until petitioner obtains the necessary
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authorization from the Court of Appeals.
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The motion to dismiss is GRANTED, and the petition is DISMISSED without prejudice to
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refiling if petitioner obtains authorization from the Court of Appeals to file a second or
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successive petition.
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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).
The clerk shall enter judgment and close the file.
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For the Northern District of California
United States District Court
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IT IS SO ORDERED.
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Dated: October
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, 2019.
WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE
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