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SANCHEZ v. EVANS

United States District Court, N.D. California


October 24, 2005.

CARLOS ALBERTO SANCHEZ, Petitioner,
v.
M. EVANS, Warden, Respondent.

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge

ORDER OF DISMISSAL; GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS

Petitioner, a California prisoner incarcerated at Salinas Valley State Prison, filed the above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging a conviction obtained in the Monterey County Superior Court in 2002. Prior to filing the instant petition, petitioner filed another petition in this district challenging the same conviction. See Sanchez v. Evans, No. 05-1634 MMC (PR). That petition was dismissed because it failed to state a claim upon which relief could be granted.

A second or successive petition may not be filed in the district court unless the petitioner first obtains from the United States Court of Appeals an order authorizing the district court to consider the petition. See 28 U.S.C. § 2244(b)(3)(A). Petitioner has not sought or obtained from the United States Court of Appeals for the Ninth Circuit an order under 28 U.S.C. § 2244(b)(3)(A), authorizing him to file a second or successive petition in the district court. Accordingly, the instant petition is DISMISSED without prejudice to refiling if petitioner obtains the necessary order.

  Petitioner's application to proceed in forma pauperis is GRANTED, and no fee shall be due.

  This order terminates Docket No. 2.

  The Clerk shall close the file and terminate any pending motions.

  IT IS SO ORDERED.

20051024

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