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Francis v. Evans

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA


August 1, 2005

DARRYL FRANCIS, PETITIONER,
v.
M. EVANS, WARDEN, RESPONDENT.

The opinion of the court was delivered by: Susan Illston United States District Judge

ORDER OF DISMISSAL

Darryl Francis, a prisoner at Salinas Valley State Prison, filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition is not his first federal habeas petition concerning his 1999 murder conviction. His earlier habeas petition in Francis v. Lamarque, No. C 01-3957 SI, was denied on the merits on October 23, 2002. The decision apparently was not appealed.

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). Francis has not obtained such an order from the Ninth Circuit. This court will not entertain a new petition from Francis 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 Francis filing a petition in this court after he obtains the necessary order from the Court of Appeals for the Ninth Circuit.

If Francis 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 95 Seventh Street, San Francisco, CA 94103), rather than to this court. In his motion to the Ninth Circuit, he should explain how he meets the requirements of 28 U.S.C. § 2244(b).

The clerk shall close the file.

IT IS SO ORDERED.

20050801

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