United States District Court, N.D. California
December 21, 2005.
JERRY MONTANO, Petitioner,
JAMES A. YATES, warden, Respondent.
The opinion of the court was delivered by: SUSAN ILLSTON, District Judge
ORDER OF DISMISSAL
Jerry Montano, a prisoner at Pleasant 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 2001 drug conviction from the Santa Clara
County Superior Court. His earlier habeas petition in Montano v.
Lamarque, No. C 04-108 SI, was denied on the merits on April 5,
2005. An appeal from that decision is now pending.
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). Montano has
not obtained such an order from the Ninth Circuit. This court
will not entertain a new petition from Montano 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 Montano filing a petition in this court after he
obtains the necessary order from the Court of Appeals for the
Ninth Circuit. If Montano 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).
Petitioner's in forma pauperis application is DENIED. (Docket
The clerk shall close the file.
IT IS SO ORDERED.
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