United States District Court, N.D. California
November 15, 2005.
HONESTO B. RAMOS, Petitioner,
TOM CAREY, warden, Respondent.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER OF DISMISSAL
Honesto B. Ramos, a prisoner at the California State Prison
Solano, 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 1997 conviction from the
Santa Clara County Superior Court. His earlier habeas petition in
Ramos v. Carey, No. C 03-1323 SI, was dismissed as untimely,
and the dismissal was affirmed in Ramos v. Carey, Ninth Circuit
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). Ramos has
not obtained such an order from the Ninth Circuit. This court
will not entertain a new petition from Ramos 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 Ramos filing a petition in this court after he
obtains the necessary order from the Court of Appeals for the
Ninth Circuit. If Ramos 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).
In light of this dismissal, the motion for appointment of
counsel is DENIED as moot. (Docket # 2.)
The clerk shall close the file.
IT IS SO ORDERED.
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