Garibay v. Marshall

Filing 3

ORDER OF DISMISSAL. Signed by Judge Claudia Wilken on 2/7/08. (scc, COURT STAFF) (Filed on 2/7/2008)

Garibay v. Marshall

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Case 4:07-cv-05338-CW

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Filed 02/07/2008

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1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Petitioner, a state prisoner, filed this pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 and an application for leave to proceed in forma pauperis (IFP). Petitioner has filed a previous petition for a writ of habeas corpus with this Court, challenging the same conviction and sentence. See Case No. C 03-1808 CW (PR). The Court denied the v. JOHN MARSHALL, Warden, Respondent. / RAUL A. GARIBAY, Petitioner, No. C 07-05338 CW (PR) ORDER OF DISMISSAL IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

first petition on the merits. DISCUSSION The Court finds the present petition is a second or successive petition attacking the same conviction and sentence as Petitioner's prior federal habeas petition. A second or successive petition

containing new claims may not be filed in the district court unless Petitioner first obtains from the United States Court of Appeals an order authorizing the district court to consider the petition. U.S.C. § 2244(b)(3)(A). Petitioner has not done so. 28

Accordingly,

this petition is DISMISSED without prejudice to filing a new habeas action if Petitioner obtains the necessary order.

Dockets.Justia.com

Case 4:07-cv-05338-CW

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Filed 02/07/2008

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

CONCLUSION For the foregoing reasons, the petition is DISMISSED pursuant to 28 U.S.C. § 2244(b). Based solely on Petitioner's lack of

financial resources, his application to proceed IFP (docket no. 2) is GRANTED. The Clerk of the Court shall enter judgment in accordance with this Order, terminate all other pending motions, and close the file. IT IS SO ORDERED. Dated: 2/7/08 CLAUDIA WILKEN UNITED STATES DISTRICT JUDGE

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Case 4:07-cv-05338-CW

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Filed 02/07/2008

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 RAUL A. GARIBAY, Plaintiff, v. JOHN MARSHALL et al, Defendant.

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

Case Number: CV07-05338 CW CERTIFICATE OF SERVICE

/

I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S. District Court, Northern District of California. That on February 7, 2008, I SERVED a true and correct copy(ies) of the attached, by placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery receptacle located in the Clerk's office.

Raul A. Garibay P98953 CMC - West, U1-D4-33U P.O. Box 8103 San Luis Obispo, CA 93403 Dated: February 7, 2008 Richard W. Wieking, Clerk By: Sheilah Cahill, Deputy Clerk

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