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CHAVEZ v. YATES

United States District Court, N.D. California


September 21, 2004.

GILBERTO CAPI CHAVEZ, Petitioner,
v.
JAMES A. YATES, warden, Respondent.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge

JUDGMENT

This action is dismissed without prejudice to petitioner filing a petition in this court if he obtains the necessary order from the United States Court of Appeals for the Ninth Circuit.

IT IS SO ORDERED AND ADJUDGED. ORDER OF DISMISSAL

  INTRODUCTION

  Gilberto Capi Chavez, a prisoner at Pleasant Valley State Prison, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent now moves to dismiss the petition as an impermissible second or successive petition and as untimely filed. See 28 U.S.C. § 2244(b) and (d). Chavez's opposition brief does not argue that the petition is not a second or successive petition or that the petition is timely; instead, he requests this court to transfer the action to the Ninth Circuit Court of Appeals for consideration of a request to file a second or successive petition. For the reasons discussed below, the court will grant the motion to dismiss and dismiss the action because Chavez did not receive permission to file a second or successive petition before he filed this action. DISCUSSION

  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). In his motion to the Court of Appeals, the petitioner must make a prima facie showing that the petition satisfies the requirements of § 2244(b).

  The current petition is not Chavez's first federal habeas petition concerning his 1995 conviction in San Mateo County Superior Court. His earlier habeas petition in Chavez v. Hubbard, No. C 99-1834 SI, was denied on the merits in February 2000 and that decision was affirmed on appeal in or about September 2001.

  Chavez did not obtain an order from the Court of Appeals authorizing him to file the current petition. This court will not entertain a new petition from Chavez until he first obtains permission from the Court of Appeals for the Ninth Circuit to file such a petition.

  The court declines to transfer this action to the Court of Appeals because it is not a matter of Chavez having filed the right document in the wrong court, as is contemplated in 28 U.S.C. § 1631. Chavez's brief and petition are not the functional equivalent of the motion that must be filed in the Court of Appeals. Chavez's brief and petition do not make the showing required in a motion under § 2244(b). Moreover, Chavez does not state when he might actually file the necessary motion in the Court of Appeals, does not state that he can make the needed showing in that court, and does not explain why he did not file that motion before filing the current petition. Additionally, the petition appears to contain claims already litigated as well as new claims, although only the new claims possibly could be litigated in a new petition, see § 2244(b)(1); Chavez (rather than a court) should sort out which claims are new and which must be deleted as repetitive.

  If Chavez wants to attempt to obtain the necessary order from the Court of Appeals, 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 Court of Appeals 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 United States Court of Appeals for the Ninth Circuit (at 95 Seventh Street, San Francisco, CA 94103), rather than to this court. In his motion to the Court of Appeals, Chavez should explain how he meets the requirements of 28 U.S.C. § 2244(b).

  In light of the determination that the petition must be dismissed for failure to obtain permission from the Court of Appeals to file the petition, the court does not reach the question of whether the petition was timely filed.

  CONCLUSION

  Respondent's motion to dismiss is GRANTED. (Docket # 5.) This action is dismissed without prejudice to Chavez filing a petition in this court if he obtains the necessary order from the United States Court of Appeals for the Ninth Circuit. The clerk shall close the file.

  IT IS SO ORDERED.

20040921

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