Young v. Superior Court County of Alameda

Filing 8

***SEE ATTACHMENT 2 FOR CORRECT ORDER FILED IN CASE*** ORDER OF DISMISSAL; GRANTING MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS. Signed by Judge Edward J. Davila on 1/17/2017. (Attachments: # 1 Certificate/Proof of Service)(amkS, COURT STAFF) (Filed on 1/17/2017) (Additional attachment(s) added on 1/18/2017: # 2 Errata CORRECT ORDER) (amkS, COURT STAFF). Modified TEXT on 1/18/2017 (amkS, COURT STAFF).

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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BRIAN YOUNG,
United States District Court
Northern District of California

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Petitioner,

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

v.

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Case No. 16-06616 EJD (PR)

SUPERIOR COURT COUNTY OF
ALAMEDA,
Respondent.

(Docket No. 5)

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Petitioner, a California prisoner, filed a pro se petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, challenging his state conviction. Petitioner has filed a
motion for leave to proceed in forma pauperis. (Docket No. 5.)

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DISCUSSION

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A second or successive petition containing previously raised or new claims may not
be field in the district court unless the petitioner first obtains from the United States Court
of Appeals an order authorizing the district court to consider the petition. 28 U.S.C. §
2244(b)(3)(A).
It appears that the instant habeas petition is second or successive because Petitioner

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filed a prior habeas petition in this Court, see Young v. Barnes, Case No. 14-03550 EJD

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(PR), which challenged the same state conviction out of Alameda County in 2012. In that

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case, the Court denied the petition on the merits of three claims.1 Petitioner now raises a

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new claim which he has recently exhausted in the state courts. However, before a second

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or successive petition may be filed in the district court, Petitioner must first obtain an order

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from the Ninth Circuit Court of Appeals authorizing this Court to consider a renewed

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challenge to his state conviction. See 28 U.S.C. § 2244(b)(3)(A). Accordingly, the instant

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petition must be dismissed in its entirety as second and successive.
Petitioner has not presented such an order from the Ninth Circuit. See 28 U.S.C. §

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2244(b)(3)(A). Accordingly, the instant petition must be dismissed in its entirety as

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United States District Court
Northern District of California

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second and successive.

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CONCLUSION

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For the foregoing reasons, the instant petition for a writ of habeas corpus is

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DISMISSED without prejudice as second and successive. Petitioner may file another

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petition in this Court if he obtains the necessary order from the Ninth Circuit.
No certificate of appealability is warranted in this case. See Rule 11(a) of the Rules

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Governing § 2254 Cases, 28 U.S.C. foll. § 2254 (requiring district court to rule on

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certificate of appealability in same order that denies petition). Petitioner has not shown

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“that jurists of reason would find it debatable whether the petition states a valid claim of

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the denial of a constitutional right and that jurists of reason would find it debatable

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whether the district court was correct in its procedural ruling.” Slack v. McDaniel, 529

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U.S. 473, 484 (2000).
Petitioner’s motion for leave to proceed in forma paupers, (Docket No. 5), is

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Petitioner appealed the matter, and the Ninth Circuit denied his request for a certificate of
appealability on August 26, 2016. See Young v. Barnes, No. 16-15082, slip op. at 1 (9th
Cir. Aug. 26, 2016).

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GRANTED.

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This order terminates Docket No. 5.

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IT IS SO ORDERED.

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1/17/2017
Dated: _____________________

________________________
EDWARD J. DAVILA
United States District Judge

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United States District Court
Northern District of California

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Order of Dismissal; Grant IFP
PRO-SE\EJD\HC.16\06616Young_dism(sec.succ)&ifp

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