Opinion
Case No. C02-5684RJB
January 21, 2003
ORDER GRANTING APPLICATION FOR PAUPER STATUS AND ORDER TO SHOW CAUSE WHY PETITION SHOULD NOT BE DISMISSED AS A SECOND OR SUCCESSIVE PETITION
The petitioner in this action is seeking federal habeas corpus relief pursuant to 28 U.S.C. § 2254. This case has been referred to the undersigned Magistrate Judge pursuant to Title 28 U.S.C. § 636 (b)(1)(A) and 636(b)(1)(B) and Local Magistrates' Rules MJR 3 and MJR 4. After reviewing the record, the court GRANTS petitioner's application to. proceed as a pauper and concludes:
1. On December 24, 2002, the court clerk accepted the instant petition for filing. Significantly, petitioner previously filed a federal petition for habeas relief challenging the same conviction. See Cause Nos. C02-5595RJB, which is still pending.
2. The instant petition raises grounds not included in the earlier filed petition. Accordingly, this petition appears to be a second or successive petition within the meaning of the Antiterrorism and Effective Death Penalty Act of 1996, which was signed into law on April 24, 1996. Significantly, section 2244(b)(3)(A) of the Act provides;
Before a second or successive application permitted by this section is filed in the district court, the applicant shall move in the appropriate court of appeals for an order authorizing the district court to consider the application.
3. Accordingly, petitioner shall show cause by February 18, 2003, why the instant petition should not be treated as a second or successive petition. The petition will be dismissed unless petitioner obtains an order from the Ninth Circuit authorizing the filing of the second or successive petition.
4. The Court Clerk is directed to send a copy of this Order to petitioner.