Ellis v. Hill

Filing 4

DISMISSING PETITIONS; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS; DIRECTING CLERK OF THE COURT TO TERMINATE ALL PENDING MOTIONS. Signed by Judge Claudia Wilken on 11/17/2011. (ndr, COURT STAFF) (Filed on 11/17/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ROBERT ELLIS,
Petitioner,

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Nos. C 11-05121 CW (PR)
C 11-05389 CW (PR)
ORDER DISMISSING PETITIONS;
GRANTING LEAVE TO PROCEED IN
FORMA PAUPERIS; DIRECTING CLERK
OF THE COURT TO TERMINATE ALL
PENDING MOTIONS

v.
RICK HILL, Warden,
Respondent.

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/

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United States District Court
For the Northern District of California

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Petitioner, a state prisoner, filed the present pro se
petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging his 1998 conviction for attempted murder.

Petitioner

previously challenged the same conviction in a habeas petition that
was denied on the merits.
(PR).

See Ellis v. Roe, Case No. C 01-3141 MMC

Since that denial, this Court has denied, under 28 U.S.C.

§ 2244, Petitioner's previous attempt to present a renewed
challenge to his conviction without prior approval from the Ninth
Circuit.

See Ellis v. Hill, Case No. C 09-00351 CW (PR).

Specifically, a second or successive petition containing previously
raised or new claims may not be filed in the district court unless
the petitioner first obtains from the United States Court of
Appeals an order authorizing the district court to consider the
petition.

28 U.S.C. § 2244(b)(3)(A).

Because Petitioner here has not obtained prior approval from
the Ninth Circuit for this Court to consider his renewed challenge
to his conviction in the above-titled petitions, the petitions are
DISMISSED without prejudice to Petitioner’s filing a petition in

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this Court if he obtains the necessary order from the Ninth

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Circuit.1

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In light of Petitioner’s lack of funds, his applications to
proceed in forma pauperis are GRANTED.

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United States District Court
For the Northern District of California

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CONCLUSION
For the reasons stated above, the above-titled petitions are
DISMISSED without prejudice.
Petitioner's applications to proceed in forma pauperis are
GRANTED.
The Clerk of the Court shall terminate all pending motions in
the present actions, enter judgment and close the files.
This Order terminates Docket nos. 2 and 3 in Case no. C 1105121 CW (PR), and Docket nos. 2 and 3 in Case no. C 11-05389.
IT IS SO ORDERED.

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Dated: 11/17/2011
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CLAUDIA WILKEN
UNITED STATES DISTRICT JUDGE

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The gatekeeping function performed by a court of appeals applies
only to a second or successive petition filed in the district court.
See Felker v. Turpin, 518 U.S. 651, 662 (1996). Petitioner still may
file an original successive habeas petition in the United States
Supreme Court, in which case the court of appeals' permission to file
is not needed. See id. at 660-61.

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UNITED STATES DISTRICT COURT
FOR THE
NORTHERN DISTRICT OF CALIFORNIA

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ROBERT ELLIS,

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v.

CERTIFICATE OF SERVICE

RICK HILL et al,
Defendant.

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United States District Court
For the Northern District of California

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Case Number: CV11-05121 CW
CV11-05389 CW

Plaintiff,

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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 November 17, 2011, 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.

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Robert Ellis P35156
CSP - Old Folsom
P.O. Box 715071
Represa, CA 95671

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Dated: November 17, 2011

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Richard W. Wieking, Clerk
By: Nikki Riley, Deputy Clerk

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