Opinion
ORDER (Docket # 28)
CHARLES R. BREYER, District Judge.
Petitioner, a state prisoner currently incarcerated at Folsom State Prison, has filed a second notice of appeal and request for a certificate of appealability (COA) from the May 3, 2001 order of this court denying on the merits his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
Petitioner first filed a notice of appeal and request for a COA on June 20, 2001. The court denied a COA on June 25, 2001, and the Ninth Circuit denied a COA as well a couple of months later. Petitioner claims that a COA is in order nine years later due to "new evidence and new facts."
Petitioner's request must be treated as a second or successive petition for a writ of habeas corpus under 28 U.S.C. § 2254 because it advances one or more claims for relief from the state court's judgment of conviction. Cf. Gonzalez v. Crosby, 545 U.S. 524, 530-31 (2005) (motion for reconsideration that contains one or more claims for relief from a state court's judgment of conviction is, if not in substance a successive habeas petition, at least similar enough that failing to subject it to the same requirements would be inconsistent with the habeas statute); Allen v. Ornoski, 435 F.3d 946, 957 (9th Cir. 2006) (motion for reconsideration should be treated as a successive habeas petition if the factual predicate for the motion also states a claim for a successive petition under 28 U.S.C. § 2244(b)). But 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. The petition/request accordingly is DISMISSED without prejudice to refiling if petitioner obtains the necessary order.
SO ORDERED.