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