United States District Court, N.D. California
May 6, 2004.
TYRONE D. ROBINSON, Petitioner,
GEORGE M. GALAZA, Respondent
The opinion of the court was delivered by: 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
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
IT IS SO ORDERED.
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