Alexander v. Davis

Filing 11

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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1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 RICKEY ALEXANDER, 10 Petitioner, 11 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 9 12 RONALD DAVIS, Warden, 13 Respondent. / 14 15 Petitioner, a state prisoner, has filed a petition for a writ of habeas corpus pursuant to 28 16 U.S.C. § 2254. Respondent has filed a motion to dismiss the petition because it is a second or 17 successive petition. Because this issue can be readily decided based upon the petition, the 18 motion, the court dockets, and other court records, there is no need for an opposition or a reply 19 brief. 20 A second or successive petition may not be filed in this court unless petitioner first 21 obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this 22 court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). This requirement is 23 jurisdictional. Burton v. Stewart, 549 U.S. 147, 156 (2007) (per curiam). In 1999, petitioner 24 filed a habeas petition in federal court challenging a 1992 state court judgment sentencing him 25 to 20 years to life in state prison. See Alexander v. Newland, No. C 99-3117 WHA (PR). The 26 petition was denied on its merits in 2005, and affirmed on appeal in 2006, see Alexander v. 27 Newland, No. 05-16222. 28 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 1 Circuit to file a second or successive petition under Section 2244(b)(3)(A). Therefore, this is a 2 second habeas petition that must be dismissed until petitioner obtains the necessary 3 authorization from the Court of Appeals. 4 The motion to dismiss is GRANTED, and the petition is DISMISSED without prejudice to 5 refiling if petitioner obtains authorization from the Court of Appeals to file a second or 6 successive petition. 7 No certificate of appealability is warranted in this case because a reasonable jurist would 8 not find the dismissal of this petition debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 9 (2000). The clerk shall enter judgment and close the file. 11 For the Northern District of California United States District Court 10 IT IS SO ORDERED. 12 Dated: October 9 , 2019. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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