Davis v. Kramer

Filing 8

ORDER by Judge Ronald M. Whyte Denying 7 Motion for Relief from Judgment. (jg, COURT STAFF) (Filed on 9/11/2008)

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*E-FILED - 9/11/08*

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA DWAYNE E. DAVIS, Petitioner, vs. MIKE C. KRAMER, Warden Respondent. ) ) ) ) ) ) ) ) ) ) No. C 07-1578 RMW (PR) ORDER DENYING MOTION FOR RELIEF FROM JUDGMENT (Docket No. 7)

Petitioner, a state prisoner proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was dismissed as a second or successive petition pursuant to 28 U.S.C. § 2244(b), without prejudice to refiling after petitioner obtains the necessary authorization from the Ninth Circuit. Petitioner has filed a motion for relief from judgment (Docket No. 7). Petitioner's motion addresses the merits of his petition and does not discuss the requirement that he get authorization for a second or successive application. Although a prisoner may have grounds under § 2244 (2)(b) for a second or successive application, § 2244(3)(A) requires that the applicant must "move in the appropriate court of appeals for an order authorizing the district court to consider the application." (emphasis added). Since petitioner has not obtained the required /// ///

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authorization, his motion for relief from judgment is DENIED without prejudice.

Dated: 9/10/08

RONALD M. WHYTE United States District Judge

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