Opinion
23-cv-06658-CRB (PR)
01-19-2024
JASPER BAILEY, G60744, Petitioner, v. E. BORLA, Acting Warden, Respondent.
ORDER DISMISSING PETITION FOR A WRIT OF HABEAS CORPUS AS SECOND OR SUCCESSIVE PETITION
(ECF Nos. 2, 3 & 4)
CHARLESR.BREYER, UNITED STATES DISTRICT JUDGE
Petitioner, a state prisoner currently incarcerated at the Correctional Training Facility (CTF) in Soledad, California, has filed a second or successive petition for a writ of habeas corpus under 28 U.S.C. § 2254 challenging his 2009 conviction and indeterminate life sentence from Santa Clara County Superior Court. His first petition was denied on the merits on October 8, 2013. See Bailey v. Diaz, No. 12-cv-01414-CRB (PR) (N.D. Cal. Oct. 8, 2013) (order denying petition for writ of habeas corpus challenging 2009 state court conviction).
A second or successive petition may not be filed in this court unless petitioner first obtains from the United States Court of Appeals for the Ninth Circuit an order authorizing this court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Petitioner has not obtained such an order from the Ninth Circuit and his motion for a stay (ECF No. 4) until he does is DENIED. The petition accordingly is DISMISSED without prejudice to refiling if he obtains the necessary order from the Ninth Circuit.
Petitioner's motion for appointment of counsel (ECF No. 3) is DENIED as moot and for lack of merit. But based solely on petitioner's affidavit of poverty, his motion to proceed in forma pauperis (ECF No. 2) under 28 U.S.C. § 1915 is GRANTED. The clerk is instructed to close the file and terminate the motions appearing on ECF as pending items number 2, 3 and 4.
IT IS SO ORDERED.