Loyola v. Santa Clara Superior Court of San Jose California et al

Filing 12

ORDER by Judge Ronald M. Whyte Granting 11 Motion to Dismiss as Second or Successive; Denying Certificate of Appealability. (jg, COURT STAFF) (Filed on 10/25/2011)

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1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE NORTHERN DISTRICT OF CALIFORNIA 10 11 EMILIANO ZAPATA LOYOLA, 12 Petitioner, 13 vs. 14 KATHLEEN DICKERSON, Warden, 15 Respondent. 16 17 ) ) ) ) ) ) ) ) ) ) No. C 10-4775 RMW (PR) ORDER GRANTING RESPONDENT’S MOTION TO DISMISS AS SECOND OR SUCCESSIVE; DENYING CERTIFICATE OF APPEALABILITY Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus 18 pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the petition 19 should not be granted. Respondent filed a motion to dismiss the petition as untimely, and barred 20 as a second or successive petition. Although given an opportunity, petitioner did not file an 21 opposition. Based upon the record, the court concludes that the petition is an unauthorized 22 second or successive petition, GRANTS respondent’s motion, and DISMISSES the instant 23 petition. 24 25 BACKGROUND In 2002, petitioner was convicted in the Santa Clara County Superior Court of two counts 26 of second degree robbery. The trial court sentenced petitioner to a term of 60 years to life. In 27 the instant federal petition, petitioner raises the following claims: (1) he received ineffective 28 assistance of counsel; (2) his guilty plea was involuntary; and (3) he is actually innocent of one Order Granting Respondent’s Motion to Dismiss as Second or Successive P:\PRO-SE\SJ.Rmw\HC.10\Loyola775sos.wpd 1 of the robbery convictions. 2 DISCUSSION 3 A district court must dismiss claims presented in a second or successive habeas petition 4 challenging the same conviction and sentence unless the claims presented in the previous 5 petition were denied for failure to exhaust. See 28 U.S.C. § 2244(b)(1); Babbitt v. Woodford, 6 177 F.3d 744, 745-46 (9th Cir. 1999). Additionally, a district court must dismiss any new claims 7 raised in a successive petition unless the petitioner received an order from the court of appeals 8 authorizing the district court to consider the petition. 9 Here, the instant petition challenges the same conviction and sentence as petitioner’s 10 previous habeas action: (1) Loyola v. Caden, No. 04-2100 RMW (PR), which was denied on the 11 merits on August 22, 2006; and (2) Loyola v. Evans, No. 06-4777 RMW (PR), which was 12 dismissed as a second or successive petition on March 2, 2007. Petitioner has not presented an 13 order from the Ninth Circuit Court of Appeals authorizing this court to consider any new claims. 14 Accordingly, this court must dismiss the instant petition in its entirety. See 28 U.S.C. 15 § 2244(b)(3)(A).1 16 CONCLUSION 17 Respondent’s motion to dismiss the petition as second or successive is GRANTED. The 18 instant habeas petition is DISMISSED without prejudice to refiling if petitioner obtains the 19 necessary order. The lerk shall terminate any pending motions and close the file. 20 Petitioner has not shown “ that jurists of reason would find it debatable whether the 21 district court was correct in its procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). 22 Accordingly, a certificate of appealability is DENIED. IT IS SO ORDERED. 23 24 Dated: RONALD M. WHYTE United States District Judge 25 26 27 28 1 Because the court dismisses the petition as an unauthorized second or successive petition, it need not address respondent’s argument that the petition is also untimely. Order Granting Respondent’s Motion to Dismiss as Second or Successive 2 P:\PRO-SE\SJ.Rmw\HC.10\Loyola775sos.wpd UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA EMILIANO Z. LOYOLA, Case Number: CV10-04775 RMW Plaintiff, CERTIFICATE OF SERVICE v. SANTA CLARA COUNNTY SUPERIOR CT et al, Defendant. / 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 October 25, 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. Emiliano Zapata Loyola P-32816 California Medical Facility Post Office Box 2000 Bed # L31aL Vacaville, CA 95696-2000 Dated: October 25, 2011 Richard W. Wieking, Clerk By: Jackie Lynn Garcia, Deputy Clerk

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