Vigil v. Yates

Filing 7

ORDER OF DISMISSAL; GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Jeremy Fogel on 6/24/09. (dlm, COURT STAFF) (Filed on 7/7/2009)

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NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

WILLIE PAUL VIGIL, JR., Petitioner, vs. JAMES A. YATES, Warden, Respondent.

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No. C 09-00704 JF (PR) ORDER OF DISMISSAL; GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

(Docket No. 6)

On February 18, 2009, Petitioner, a California prisoner, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 1998 conviction, in Santa Clara County Superior Court. Petitioner challenged this same conviction in a prior petition filed in this court, Vigil v. Garcia, No. 02-1490 MJJ (PR), which was denied on its merits.1 A second or successive petition challenging the same conviction or parole denial may not be filed in this court under 28 U.S.C. § 2254 unless Petitioner first obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this

Two previous habeas petitions, also challenging the same conviction, were dismissed as a successive petitions pursuant to 28 U.S.C. § 2244(b)(3)(A). See Vigil v. Yates, No. 07-2061 MJJ (PR) and Vigil v. Yates, No. 07-5288 MJJ (PR).
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Order of Dismissal; Granting IFP P:\PRO-SE\SJ.JF\HC.09\Vigil00704_dism-succ.wpd

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court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Petitioner has filed herein a copy of his January 7, 2009, application to the Ninth Circuit to file a successive petition under 28 U.S.C. § 2244(b)(3)(A), (see Docket No. 2), but Petitioner has not obtained authorization to do so. Accordingly, the instant petition is DISMISSED without prejudice to refiling if petitioner obtains the necessary order from the Ninth Circuit. Petitioner's motion for leave to proceed in forma pauperis (Docket No. 6) is GRANTED. This order terminates Docket No. 6. The Clerk shall close the file. IT IS SO ORDERED.
6/24/09 DATED: ____________________

JEREMY FOGEL United States District Judge

Order of Dismissal; Granting IFP P:\PRO-SE\SJ.JF\HC.09\Vigil00704_dism-succ.wpd

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

WILLIE PAUL VIGIL JR., Petitioner, v. JAMES A. YATES, Warden, Respondent. /

Case Number: CV09-00704 JF 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. 7/7/09 , I SERVED a true and correct copy(ies) of the That on 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.

Willie Paul Vigil K-90947 Pleasant Valley State Prison P.O. Box 8501 Facility A-4-135-U Coalinga, CA 93210 Dated: 7/7/09 Richard W. Wieking, Clerk