Robinson v. Galaza

Full title: TYRONE D. ROBINSON, Petitioner, v. GEORGE M. GALAZA, Respondent

Court: United States District Court, N.D. California

Date published: May 6, 2004

No. C 04-449 SI (pr) (N.D. Cal. May. 6, 2004)

Opinion

No. C 04-449 SI (pr)

May 6, 2004

JUDGMENT

SUSAN ILLSTON, District Judge

The petition for writ of habeas corpus is dismissed without prejudice to petitioner filing a second or successive habeas petition after he receives permission to do so from the U.S. Court of Appeals for the Ninth Circuit.

IT IS SO ORDERED AND ADJUDGED.

ORDER OF DISMISSAL

Tyrone D. Robinson, a prisoner at Corcoran State Prison, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition is not Robinson's first federal habeas petition concerning his 1991 murder conviction: his earlier habeas petition in Robinson v. Cambra, No. C 96-107 SI, was denied on the merits in 1998. The Ninth Circuit affirmed the district court's judgment on that earlier petition.

A second or successive petition may not be filed in this court unless the petitioner first obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this court to consider the petition. 28 U.S.C. § 2244(b)(3)(A). Robinson has not obtained such an order from the Ninth Circuit. This court will not entertain a new petition from Robinson until he first obtains permission from the Court of Appeals for the Ninth Circuit to file such a petition. This action is DISMISSED without prejudice to Robinson filing a petition in this court if he obtains the necessary order from the Court of Appeals for the Ninth Circuit.

If Robinson wants to attempt to obtain the necessary order from the Ninth Circuit, he should very clearly mark the first page of his document as a "MOTION FOR ORDER AUTHORIZING DISTRICT COURT TO CONSIDER SECOND OR SUCCESSIVE PETITION PURSUANT TO 28 U.S.C. § 2244(b)(3)(A)" rather than labeling it as a habeas petition because the Ninth Circuit clerk's office is apt to simply forward to this court any document labeled as a habeas petition. He also should mail the motion to the Ninth Circuit (at 05 Seventh Street, San Francisco, CA 94103), rather than to this court. In his motion to the Ninth Circuit, Robinson should explain how he meets the requirements of 28 U.S.C. § 2244(b).

Petitioner's in forma pauperis applications an motion to appoint counsel are DENIED. (Docket #2, #3, and #5.) The clerk shall close the file.

IT IS SO ORDERED.