Richardson v. Walker

Filing 10

ORDER DISMISSING CASE; DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Jeremy Fogel on 11/30/09. (dlm, COURT STAFF) (Filed on 12/9/2009)

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NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
JF ---No. C 09-03344 JW (PR)

United United States District Court

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For the Northern District of California

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PATRICK L. RICHARDSON, Petitioner, vs. JAMES WALKER, Respondent.

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ORDER OF DISMISSAL; DENYING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS

(Docket Nos. 5 & 6)

Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner has previously filed a petition for a writ of habeas corpus with this Court which was denied as untimely and on the merits on August 4, 2006. See C-97-20847 JF (PR). The instant petition is therefore the second filed by Petitioner challenging the same conviction and sentence.1 Petitioner admits as much in a letter to the Court in which he states that the issues in the instant petition "emanate from a previous Habeas Corpus [sic] denied by this Court... in

Petitioner filed another petition while Case No. C-97-20847 JF (PR) was pending. The Court dismissed the second petition as a second and successive petition. See C-02-02091 JF (PR).
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Order of Dismissal; Deny IFP P:\PRO-SE\SJ.JF\HC.09\Richardson03344_dism-succ.wpd

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August of 2006" and that the petition "is not a successive petition because [the] issues are not the same as the last writ." (Docket No. 2.) A district court must dismiss claims presented in a second or successive habeas petition challenging the same conviction and sentence unless the claims presented in the previous petition were denied for failure to exhaust. See 28 U.S.C. § 2244(b)(1); Babbitt v. Woodford, 177 F.3d 744, 745-46 (9th Cir. 1999). Additionally, a district court must dismiss any new claims raised in a successive petition unless the petitioner received an order from the court of appeals authorizing the district court to consider the petition. See 28 U.S.C. § 2244(b)(2). Here, the instant petition challenges the same sentence as the previous petition and Petitioner has not presented an order from the Ninth Circuit Court of Appeals authorizing this Court to consider any new claims. Petitioner's first petition was adjudicated on the merits in this Court's order denying the petition on August 4, 2006. Accordingly, this Court must dismiss the instant petition in its entirety. The instant petition is DISMISSED as a second and successive petition pursuant to § 2244 (b)(1). Petitioner's motion for an extension of time to file an in forma pauperis application is GRANTED. (Docket No. 6.) The motion filed on September 1, 2009, is considered timely. (Docket No. 5.) However, the motion for leave to proceed in forma pauperis is DENIED because Petitioner has not shown an adequate level of poverty as the average monthly balance in his account was $192.33, for the sixmonths preceding the filing of this petition This order terminates Docket Nos. 5 and 6. IT IS SO ORDERED. DATED: 11/30/09

United States District Court

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For the Northern District of California

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JEREMY FOGEL United States District Judge

Order of Dismissal; Deny IFP P:\PRO-SE\SJ.JF\HC.09\Richardson03344_dism-succ.wpd

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

PATRICK L. RICHARDSON, Petitioner, v. JAMES WALKER, Respondent. /

Case Number: CV09-03344 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. 12/9/09 , 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.

Patrick L. Richardson H-59962 California State Prison-Folsom (New) P.O. Box 290066 FB-5-215 Represa, CA 95671 Dated: 12/9/09 Richard W. Wieking, Clerk