Opinion
No. C 13-3119 RMW (PR)
10-23-2013
AMINAH S.R. DORSEY,Petitioner, v. WARDEN D.K. JOHNSON, Respondent.
ORDER OF DISMISSAL
Petitioner, a state prisoner proceeding pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner's motion to proceed in forma pauperis is GRANTED. For the reasons stated below, the instant petition is DISMISSED without prejudice as a second or successive petition pursuant to 28 U.S.C. § 2244(b).
DISCUSSION
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.
Here, the instant petition is not petitioner's first federal habeas petition concerning her 2008 conviction from the Alameda County Superior Court. Petitioner had filed a previous federal habeas petition, challenging her 2008 conviction and sentence from the Alameda County Superior Court, which this court dismissed as untimely. See Dorsey v. Miller, No. C 11-5798 RMW (PR) (N.D. Cal. June 13, 2013). Because both petitions challenged the same 2008 conviction and sentence, and petitioner has not presented an order from the Ninth Circuit Court of Appeals authorizing this court to consider any new claims, this court must dismiss the instant petition in its entirety. See 28 U.S.C. § 2244(b)(3)(A).
In fact, petitioner has also previously applied to file a second or successive petition, but the application was denied. See Dorsey v. Johnson, No. 13-72342 (9th Cir. filed Sept. 10, 2013).
CONCLUSION
The instant habeas petition is DISMISSED without prejudice to refiling if petitioner obtains the necessary order. The clerk shall terminate any pending motions and close the file.
Petitioner has not shown "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right [or] that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Slack v. McDaniel, 529 U.S. 473, 484 (2000). Accordingly, a certificate of appealability is DENIED.
IT IS SO ORDERED.
________________
RONALD M. WHYTE
United States District Judge
AMINAH S. R. DORSEY, Plaintiff,
v.
WARDEN D. K. JOHNSON et al, Defendant.
Case Number: CV13-03119 RMW
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. That on October 23, 2013, 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. Aminah S.R. Dorsey X34913
510-06-01 UP
CCWF
PO Box 1508
Chowchilla, CA 93610
Richard W. Wieking, Clerk
By: Jackie Lynn Garcia, Deputy Clerk