Alexander v. Haviland

Filing 8

ORDER GRANTING MOTION TO DISMISS re 6 , 7 . Signed by Judge Jeremy Fogel on 5/17/10. (dlm, COURT STAFF) (Filed on 5/21/2010)

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1 2 3 4 5 6 7 8 9 10 NOT FOR CITATION IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA United United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 HERBERT ALEXANDER, Petitioner, vs. JOHN W. HAVILAND, Warden, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) No. C 09-04773 JF (PR) ORDER GRANTING MOTION TO DISMISS (Docket Nos. 6 & 7) Petitioner, a state prisoner, filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254. Respondent filed a motion to dismiss the petition as second or successive. (Docket No. 6.) Petitioner filed a motion to withdraw the petition, to allow him to seek leave from the Ninth Circuit to file a second or successive petition. (Docket No. 7.) It is undisputed that Petitioner previously filed a petition for a writ of habeas corpus which was denied on the merits on August 6, 1996. See C-94-2535 MMC (OEW); (Resp't Mot. at 1). The instant petition is therefore the second filed by Petitioner challenging the same conviction and sentence. A district court must dismiss claims presented in a second or successive habeas petition challenging the Order Granting MTD P:\PRO-SE\SJ.JF\HC.09\Alexander04773_grant-mtd (succ).wpd 1 2 3 4 5 6 7 8 9 10 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 in August 1996. Accordingly, this Court must dismiss the instant petition in its entirety. Respondent's motion to dismiss, (Docket No. 6), is GRANTED. The instant petition is DISMISSED as a second and successive petition pursuant to 2244 (b)(1). Petitioner's motion to withdraw the petition, (Docket No. 7), is DENIED as moot. This order terminates Docket Nos. 6 and 7. IT IS SO ORDERED. 5/17/10 United States District Court 11 For the Northern District of California 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 DATED: JEREMY FOGEL United States District Judge Order Granting MTD P:\PRO-SE\SJ.JF\HC.09\Alexander04773_grant-mtd (succ).wpd 2 UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA HERBERT ALEXANDER, Petitioner, v. JOHN W. HAVILAND, Warden, Respondent. / Case Number: CV09-04773 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. , I SERVED a true and correct copy(ies) of the That on 5/21/10 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. Herbert Alexander E-50502 California State Prison-Solano P.O. Box 4000 Vacaville, CA 95696 Dated: 5/21/10 Richard W. Wieking, Clerk

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