Opinion
No. C 04-2719 SI (pr).
August 9, 2004
JUDGMENT
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
Jonathan L. Williams, a prisoner at Salinas Valley State Prison, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition is not Williams' first federal habeas petition concerning his 1995 murder conviction: his earlier habeas petition in Williams v. Lamarque, No. C 02-1117 SI, was dismissed on July 25, 2002 as untimely filed. The decision apparently was not appealed.
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). Williams has not obtained such an order from the Ninth Circuit. This court will not entertain a new petition from Williams 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 Williams filing a petition in this court after he obtains the necessary order from the Court of Appeals for the Ninth Circuit.
If Williams 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 95 Seventh Street, San Francisco, CA 94103), rather than to this court. In his motion to the Ninth Circuit, he should explain how he meets the requirements of 28 U.S.C. § 2244(b).
The clerk shall close the file.
IT IS SO ORDERED.